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THE   UNITED   STATES 
AND   PEACE 


THE  UNITED  STATES 
AND  PEACE 

BT 

WILLIAM   H.    TAFT 


•.  .    -•;»•.••   '. 


NEW  yore: 

CHARLES  SCRIBNER*S  SONS 
1914 


^> 


4^ 


Copyright,  1914,  by 
Charles  Sckibner's  Sons 


Published  May.  1914 


FOREWORD 

Every  President  of  the  United  States 
can  be  quoted  in  favor  of  peace.  From 
the  first  great  Virginian  to  the  last  all 
have  abhorred  what  Thomas  Jefferson 
called  "the  greatest  scourge  of  man- 
kind." 

No  President,  however,  has  espoused 
the  cause  more  unreservedly,  has  grasped 
its  fundamental  principles  more  thor- 
oughly or  attempted  to  advance  its  prog- 
ress more  directly  than  has  Mr.  Taft. 
This  book  is  a  demonstration  of  the  fact. 

Mr.  Taft  has  occupied  the  greatest  po- 
litical office  in  the  world.  He  has  pre- 
sided over  a  confederation  of  nearly  half 
a  hundred  sovereign  States — the  greatest 
peace  society  known  to  history  and  a  liv- 
ing example  to  the  nations  of  the  earth  of 
I  V  ] 


287959 


FOREWORD 

the  way  to  obtain  peace  through  political 
organization.  Peace  is  the  outcome  of 
justice,  justice  of  law,  law  of  political  or- 
ganization. Emanuel  Kant  proclaimed 
this  as  the  true  philosophy  of  peace,  when 
in  1795  he  wrote:  We  never  can  have 
universal  peace  until  the  world  is  polit- 
ically organized,  and  it  will  never  be  pos- 
sible to  organize  the  world  politically  until 
the  people,  not  the  kings,  rule. 

Peace  hath  her  victories  no  less  re- 
nowned than  war.  Perhaps  the  greatest 
victory  yet  achieved  is  the  declaration 
of  Mr.  Taft,  as  President  of  the  United 
States,  that  he  was  wilUng  to  refer  all  ques- 
tions, even  those  involving  national  honor, 
to  arbitration.  He  attempted  to  negotiate 
treaties  to  this  end  with  Great  Britain  and 
France.  His  hope  was  that  the  example 
thus  afforded  would  be  followed  by  other 
nations,  until  a  general  treaty  could  be 
formulated  in  which  the  peoples  of  the 
earth  would  agree  to  refer  all  their  dis- 
[  vi] 


FOREWORD 

putes  to  a  court  of  arbitral  justice.  This 
would  be  the  doom  of  war. 

The  attempt,  though  thwarted  by  the 
United  States  Senate,  offers  the  nations  a 
guiding  principle  which  they  will  support 
with  an  ever-increasing  favor  and  fervor 
until  it  is  made  a  universal  law.  Mr. 
Taft's  high  statesmanship  has  inaugurat- 
ed a  movement  that  will  not  end  until, 
as  Victor  Hugo  prophesied,  "the  only 
battle-field  will  be  the  market  opening 
to  commerce  and  the  mind  opening  to 
new  ideas." 

The  present  volume  is  the  outcome  of  a 
suggestion  made  to  Mr.  Taft  by  the  New 
York  Peace  Society,  which  has  started  so 
many  good  movements  to  further  inter- 
national progress  and  comity.  Its  four 
chapters  were  deUvered  last  winter  as  lec- 
tures under  the  auspices  of  the  Society. 
They  were  also  published  as  contributions 
to  The  Independent,  A  special  impor- 
tance attaches  to  them  in  the  fact  that 
[  viil 


FOREWORD 

they  were  prepared  by  one  who  has  been  a 
supreme  and  responsible  leader  in  na- 
tional and  international  politics.  Thus 
the  age-long  dreams  of  the  poets,  proph- 
ets and  philosophers  have  at  last  entered 
the  realm  of  practical  statesmanship.  / 
The  first  chapter  deals  with  the  Monroe 
Doctrine.  This  constitutes  altogether  the 
most  important  foreign  policy  of  the 
United  States.  The  second  chapter  dis- 
cusses the  status  of  aliens  under  the  con- 
flicting jurisdiction  of  the  Federal  and 
State  Governments.  This  involves  our 
chief  danger  of  war.  The  third  chapter 
completely  refutes  the  claim  of  the  Sen- 
ate that  it  has  no  power  to  consent  to 
general  arbitration  treaties.  This,  if  per- 
sisted in,  will  block  all  further  participa- 
tion of  the  United  States  in  the  movement 
for  extending  the  scope  of  arbitration. 
The  fourth  chapter  elucidates  the  history 
and  conception  of  a  world  federation  in 

which  is  emphasized  a  court  of  judicial  ar- 
[viii] 


FOREWORD 

bitration  with  jurisdiction  of  all  disputes 
— "the  highest  court  of  appeals  this  side 
the  bar  of  Eternal  Justice."  Its  realiza- 
tion is  only  a  matter  of  decades. 

The  one  way  for  a  man  to  rise  above  the 
presidency  of  the  United  States  is  to  as- 
cend into  the  international  realm  and 
there  work  for  peace  through  justice.  Mr. 
Taft  has  taken  this  upward  step.  This 
book  is  a  Declaration  of  Interdependence. 

Hamilton  Holt. 


CONTENTS 

Chaftbb  Paqb 

I.  The  Monroe  Doctrine:  Its 
Limitations  and  Implica- 
tions          1 

II.  Shall  the  Federal  Govern- 
ment Protect  Aliens  in 
Their  Treaty  Rights?     .     .      40 

III.    Arbitration     Treaties     that 

Mean  Something     ....      90 

IV.  Experiments  in  Federation  for 
Judicial  Settlement  of  In- 
ternational Disputes      .    .    133 


CHAPTER  I 

THE  MONROE  DOCTRINE: 

ITS  LIMITATIONS  AND 

IMPLICATIONS 

It  is  now  ninety  years  since  what  the 
world  has  always  called  the  Monroe  Doc- 
trine was  announced  by  President  Mon- 
roe in  a  message  to  Congress.  It  was  a 
declaration  to  the  world  that  any  efifort 
on  the  part  of  an  European  government 
to  force  its  political  system  upon  a  people 
of  this  hemisphere,  or  to  oppress  it,  would 
affect  the  safety  of  the  United  States  and 
would  be  inimical  to  her  interests,  and, 
further,  that  the  subjecting  to  coloniza- 
tion by  any  European  government  of  any 
part  of  the  two  American  continents,  all 
[  1  ] 


THE  UNITED  STATES  AND  PEACE 

of  which  was  held  to  be  within  the  lawful 
jurisdiction  of  some  government,  would 
be  equally  objectionable.  The  first  part 
of  the  declaration  was  prompted  by  the 
fear  that  the  then  Holy  Alliance  of  Rus- 
sia, Prussia,  Austria,  and  France  would 
attempt  to  assist  Spain  in  reconquering 
the  Central  and  South  American  repub- 
lics that  had  revolted  from  Spain  and  set 
up  independent  governments  which  had 
been  recognized  by  the  United  States. 
The  other  part,  against  colonization,  was 
prompted  by  certain  claims  that  Russia 
was  making  to  control  over  territory  on 
the  northwest  coast  of  North  America  to 
which  the  United  States  then  asserted 
title.  There  was  expressly  excepted  from 
the  doctrine  thus  announced  any  pur- 
pose to  interfere  with  Spain's  effort  to 
regain  her  lost  colonies  or  the  continued 
exercise  of  jurisdiction  by  European  gov- 
ernments over  any  colonies  or  territories 
which  they  then  had  in  America. 
[2] 


THE  MONROE  DOCTRINE 

I  have  not  space  to  give  the  details  of 
the  instances  in  which  our  Presidents, 
representing  our  country  in  its  foreign 
relations,  found  it  necessary  to  insist 
upon  compliance  with  the  Monroe  Doc- 
trine. When  Mr.  Webster  was  secretary 
of  state,  he  declined,  in  Mr.  Tyler's  name, 
to  consider  a  proposition  by  England  and 
France  for  a  joint  agreement  with  Spain 
as  to  the  disposition  of  Cuba,  stating  that, 
while  the  United  States  did  not  intend 
to  interfere  with  the  control  of  Cuba  by 
Spain,  it  could  not  consent  to  the  owner- 
ship of  the  island  by  any  other  power. 
Again,  when  Yucatan  had  been  tempo- 
rarily separated  from  Mexico  by  insurrec- 
tion, and  the  insurrecto  leaders  sought 
to  dispose  of  the  country  to  us,  or  to 
England,  or  to  Spain,  President  Polk,  in 
declining  their  offer  to  the  United  States, 
advised  them  that  we  could  not  consent 
to  a  transfer  of  dominion  and  sovereignty 
either  to  Spain,  Great  Britain,  or  any 
[3] 


]r^ 


.^^" 


THE  UNITED  STATES  AND  PEACE 

other  power,  because  "dangerous  to  our 
peace  and  safety." 

Without  directly  citing  the  Monroe 
Doctrine  by  name,  Mr.  Seward  protested 
against  the  occupation  of  Mexico  by 
France  during  the  Civil  War  with  the 
purpose  of  colonizing  or  setting  up  a  new 
>^  government  on  the  ruins  of  the  Mexican 

Government.  France  denied  having  any 
other  purpose  than  to  collect  its  debts 
and  redress  its  wrongs.  Afterward  the 
Mexican  Government  was  overthrown 
and  an  empire  established  with  an  Aus- 
trian archduke  at  its  head.  The  Ameri- 
can Civil  War  closed,  the  American  troops 
were  massed  on  the  Mexican  border  under 
Sheridan,  and  France  was  requested  to 
withdraw  her  troops.  She  did  so,  and 
the  collapse  of  the  Maximilian  govern- 
ment followed. 
^  ^  President  Grant,  in  sending  the  Santo 
Domingo  treaty  to  the  Senate,  announced 
that  thereafter  no  territory  on  the  conti- 
[4] 


THE  MONROE  DOCTRINE 

nent  should  be  regarded  as  subject  to 
transfer  to  an  European  power,  and  that 
this  was  an  adherence  to  the  Monroe 
Doctrine  as  a  measure  of  national  pro- 
tection. 

Again,  the  policy  was  insisted  upon 
and  maintained  by  Mr.  Olney  and  Mr. 
Cleveland  in  reference  to  England's  dec- 
lination to  arbitrate  the  boundary  issue 
between  Venezuela  and  British  Guiana, 
in  which  Mr.  Cleveland  and  Mr.  Olney 
beheved  that  they  saw  a  desire  on  the 
part  of  Great  Britain,  through  a  boundary 
dispute,  to  sequester  a  considerable  part 
of  Venezuela,  valuable  because  of  the 
discovery  of  gold-mines  in  it.  Mr.  Cleve- 
land's position  in  the  matter  was  sus- 
tained by  a  resolution  which  was  passed 
by  both  houses.  In  this  instance  Mr. 
Olney  used  the  expression: 

To-day  the  United  States  is  practically 
sovereign  on  this  continent,  and  its  fiat  is 
law  upon  the  subjects  to  which  it  confines 
its  interposition. 

15] 


THE  UNITED  STATES  AND  PEACE 

The  original  declaration  of  the  Monroe 
Doctrine  was  prompted  by  England's 
wish,  when  Canning  was  foreign  minister, 
that  England  and  the  United  States 
should  make  a  joint  declaration  of  such 
a  policy.  Since  its  announcement  by 
President  Monroe  there  have  been  fre- 
quent intimations  by  English  statesmen 
while  in  office  that  they  do  not  object  to 
its  maintenance.  Whether  the  other  gov- 
ernments of  Europe  have  acquiesced  in 
it  or  not,  it  is  certain  that  none  of  them 
have  insisted  upon  violating  it  when  the  i 
matter  was  called  to  their  attention  by 
the  United  States.  Every  one  admits 
that  its  maintenance  until  recently  has 
made  for  the  peace  of  the  world,  has  kept 
European  governments  from  intermed- 
dling in  the  politics  of  this  hemisphere, 
and  has  enabled  all  the  various  Latin- 
American  republics  that  were  oflFshoots 
from  Spain  to  maintain  their  own  govern- 
ments and  their  independence.  While  it 
I  6  ] 


THE  MONROE  DOCTRINE 

may  be  truly  said  that  it  has  not  made 
for  peace  between  them,  still,  that  was 
not  within  the  scope  of  its  purpose.     It 
has,  however,  restrained   the   land-hun- 
ger and  the  growing  disposition  for  colo- 
nization by  some  European  governments 
which    otherwise   would    certainly   have 
carried  them  into  this  hemisphere.     The 
very  revolutions  and  instabilities  of  many 
of  the  Latin-American  republics  would 
have    offered    frequent   excuse   and   op-  \ 
portunity  for  intervention  by  European  | 
governments    which    they    would    have  1 
promptly  improved. 

But  now  we  are  told  that  under  changed 
conditions  the  Monroe  Doctrine  has  be- 
come an  obsolete  shibboleth,  that  it  pro- 
motes friction  with  our  Latin-American 
neighbors,  and  that  it  is  time  for  us 
to  abandon  it.  It  is  said  that  it  is  an 
assertion  of  a  suzerainty  by  the  United 
States  over  both  continents;  that  it  seeks 
to  keep  under  the  tutelage  of  the  United 
[7] 


0 


THE  UNITED  STATES  AND  PEACE 

States  great  and  powerful  nations  like 
the  Argentine  Republic,  Brazil,  and  Chile; 
that  its  continuance  as  a  declared  policy 
of  this  government  alienates  these  and 
other  republics  of  South  America,  injures 
their  proper  national  pride,  creates  a  re- 
sentment against  us  which  interferes 
with  our  trade  relations,  and  does  not 
promote  the  friendly  feeling  that  strength- 
ens the  cause  of  peace. 

Before  we  proceed  to  consider  this 
proposition 'we  ought  to  make  clear  cer- 
tain definite  limitations  of  the  Monroe 
policy  that  are  not  always  given  weight 
by  those  who  condemn  it.  In  the  first 
place,  the  Monroe  Doctrine  is  a  policy 
of  the  United  States  and  is  not  an  obli- 
gation of  international  law  binding  upon 
any  of  the  countries  affected,  either  the 
European  countries  whose  action  it  seeks 
to  limit  or  the  countries  whose  govern- 
ment and  territory  it  seeks  to  protect. 
Nor,  indeed,  does  it  create  an  absolute 
[8] 


THE  MONROE  DOCTRINE 

obligation  on  the  part  of  the  United 
States  to  enforce  it.  It  rests  primarily 
upon  the  danger  to  the  interest  and  safety.  ^Wk'^^  "*^^ 
of  the  United  States,  and,  therefore,  the 
nearer  to  her  boundaries  the  attempted 
violation  of  the  doctrine,  the  more  di- 
rectly her  safety  is  affected  and  the  more , 
acute  her  interest,  and,  naturally,  there- 
fore, the  more  extreme  will  be  the  mea- 
sures to  which  she  would  resort  to  enforce 
it.  While  the  assertion  of  the  doctrine 
covers  both  continents,  the  measures  of 
the  United  States  in  objecting  to  an  in- 
vasion of  the  policy  might  be  much  less 
emphatic  in  the  case  where  it  was  at- 
tempted in  countries  as  remote  as  Ar- 
gentina, Brazil,  and  Chile  than  in  the 
countries  surrounding  the  Caribbean  Sea, 
or  brought  close  to  the  United  States  by 
the  opening  of  the  Panama  Canal.  <  It  is 
well  that  the  declared  policy  has  in  the 
past  covered  both  continents,  because  this 
certainly  contributed  to  the  causes  which 
[9] 


THE  UNITED  STATES  AND  PEACE 

made  Argentina,  Brazil,  and  Chile  the 
powerful  countries  they  have  become. 
But,  as  Daniel  Webster  said  in  Congress 
in  1826,  speaking  of  the  plans  of  the  Holy 
Alliance: 

If  an  armament  had  been  furnished  by  the 
allies  to  act  against  provinces  the  most  re- 
mote from  us,  as  Chile  or  Buenos  Ayres,  the 
distance  of  the  scene  of  action  diminishing 
our  apprehension  of  danger,  and  diminishing 
also  our  means  of  effectual  interposition, 
might  still  have  left  us  to  content  ourselves 
with  remonstrance.  But  a  very  different 
case  would  have  arisen  if  an  army  equipped 
and  maintained  by  these  powers  had  been 
landed  on  the  shores  of  the  Gulf  of  Mexico 
and  commenced  the  war  in  our  own  imme- 
diate neighborhood.  Such  an  event  might 
justly  be  regarded  as  dangerous  to  ourselves, 
and  on  that  ground  call  for  decided  and  im- 
mediate interference  by  us. 

?^In  other  words,  the  extent  of  our  inter- 
vention to  enforce  the  policy  is  a  matter 
of  our  own  judgment,  with  a  notice  that 
it  may  cover  all  America.  It  therefore 
follows  that  the  Monroe  Doctrine,  so  far 
[10] 


r" 


THE  MONROE  DOCTRINE 


as  it  applies  to  Argentina,  Brazil,  and 
Chile,  the  so-called  ABC  governments 
of  South  America,  is  now  never  likely  to 
be  pressed,  first  because  they  have  reached 
such  a  point  that  they  are  able  to  pro- 
tect themselves  against  any  European 
interference,  and,  second,  because  they 
are  so  remote  from  us  that  a  violation  of 
the  doctrine  with  respect  to  them  would 
be  little  harmful  to  our  interests  and 
safety. 
44^  The  second  great  limitation  of  the 
,;^  Monroe  Doctrine  is  that  it  does  not  con- 
template any  interference  on  our  part 
Fith  the  right  of  an  European  govern- 
ment  to  declare  and  make  war  upon  any 
American  government,  or  to  pursue  such 
course  in  the  vindication  of  its  national 
rights  as  would  be  a  proper  method  under 
the  rules  of  international  law.  <  This  was 
expressly  declared  to  be  a  proper  term 
in  the  statement  of  the  Doctrine  by  Mr. 
Seward  during  our  Civil  War,  when  Spain 
[11] 


THE  UNITED  STATES  AND  PEACE 

made  war  against  Chile.  He  announced 
our  intention  to  observe  neutrality  be- 
tween the  two  nations,  and  he  laid  down 
the  proposition  that  the  Doctrine  did  not 
require  the  United  States,  in  a  consistent 
pursuit  of  it,  to  protect  any  government 
in  this  hemisphere,  either  by  a  defensive 
alhance  against  the  attacking  European 
power  or  by  interfering  to  prevent  such 
punishment  as  it  might  inflict,  provided 
only  that  in  the  end  the  conquering 
power  did  not  force  its  own  government 
upon  the  conquered  people,  or  compel 
^  permanent  transfer  to  it  of  their  ter- 
ritory, or  resort  to  any  other  unjustly 
oppressive  measures  against  them.  And 
Mr.  Roosevelt,  in  his  communications  to 
Congress,  has  again  and  again  asserted 
that  maintenance  of  the  Doctrine  does 
not  require  our  government  to  object  to 
armed  measures  on  the  part  of  European 
governments  to  collect  their  debts  and 
the  debts  of  their  nationals  against  gov- 
[U] 


THE  MONROE  DOCTRINE 

ernments  in  this  continent  that  are  in 
default  of  their  just  obUgations,  provided 
only  that  they  do  not  attempt  to  satisfy 
those  obligations  by  taking  over  to  them- 
selves ownership  and  possession  of  the 
territory  of  the  debtor  governments  or  by 
other  oppressive  measures.  It  may  be 
conceded  that  Mr.  Olney  used  language 
that  was  unfortunate  in  describing  the  ef- 
fect of  the  Monroe  Doctrine  upon  the 
position  of  the  United  States  in  this  hemi- 
sphere. It  is  not  remarkable  that  it  has 
been  construed  to  be  the  claim  of  suze- 
rainty over  the  territory  of  the  two  Amer- 
ican continents.  *'  Our  fiat  is  not  law  to 
control  the  domestic  concerns  or,  indeed, 
the  foreign  policies  of  the  Latin-American 
republics  or  of  other  American  govern- 
ments, nor  do  we  exercise  substantial  sov- 
ereignty over  them.  We  are  concerned 
that  their  governments  shall  not  be  inter- 
fered with  by  European  governments;  we 
are  concerned  that  this  hemisphere  shall 
[13] 


THE  UNITED  STATES  AND  PEACE 

not  be  a  field  for  land  aggrandizement  and 
the  chase  for  increased  political  power  by- 
European  governments,  such  as  we  have 
witnessed  in  Africa  and  in  China  and  Man- 
churia, and  we  believe  that  such  a  condi- 
tion would  be  inimical  to  our  safety  and 
interests.  More  than  this,  where  a  con- 
troversy between  an  European  govern- 
ment and  a  Latin- American  republic  is  of 
such  a  character  that  it  is  likely  to  lead  to 
war,  we  feel  that  our  earnest  desire  to 
escape  the  possible  result  against  which  the 
Monroe  Doctrine  is  aimed  is  sufficient  to 
justify  our  mediating  between  the  Euro- 
pean power  and  the  Latin-American  re- 
public, and  bringing  about  by  negotiation, 
if  possible,  a  peaceable  settlement  of  the 
difference.  '  This  is  what  Mr.  Roosevelt 
did  in  Venezuela  and  in  Santo  Domingo. 
It  was  not  that  the  use  of  force  or  threat- 
ened force  to  collect  their  debts  by  the 
European  powers  constituted  a  violation 
of  the  Monroe  Doctrine  that  induced  Mr. 
[14] 


THE  MONROE  DOCTRINE 

Roosevelt  to  act,  but  only  a  general  de- 
sire to  promote  peace  and  also  a  wish  to 
avoid  circumstances  in  which  an  inva- 
sion of  the  Monroe  Doctrine  might  easily 
follow. 

>  It  is  said — and  this  is  what  frightens 
peace  advocates  from  the  Monroe  Doc- 
trine— that  it  rests  on  force  and  ulti- 
mately on  the  strength  of  our  army  and 
our  navy.  That  is  true,  if  its  enforce- 
ment is  resisted.  Its  ultimate  sanction 
and  vindication  are  in  our  ability  to 
maintain  it;  but  our  constant  upholding 
and  assertion  of  the  Doctrine  have  en- 
abled us,  with  the  conflicting  interests  of 
European  powers — the  support  of  some 
and  the  acquiescence  of  others — to  give 
effect  to  the  Doctrine  for  now  nearly  a 
century,  and  that  without  the  firing  of 
a  single  shot.  This  has  secured  the  Doc- 
trine a  traditional  weight  that  assertion 
of  a  new  policy  by  the  United  States 
never  could  have.  It  is  a  national  asset, 
[15] 


THE  UNITED  STATES  AND  PEACE 

and,  indeed,  an  asset  of  the  highest  value 
for  those  who  would  promote  the  peace 
of  the  world.  ^  The  mere  fact  that  the  fur- 
ther successful  maintenance  of  the  Mon- 
roe Doctrine,  in  the  improbable  event 
that  any  European  power  shall  deliber- 
ately violate  it,  will  require  the  exercise 
of  force  upon  our  part  is  certainly  not  a 
reason  for  the  most  sincere  advocate  of 
peace  to  insist  upon  sacrificing  its  benefi- 
cent influence  and  prestige  as  an  instru- 
ment of  peace  to  prevent  European  inter- 
meddling in  this  hemisphere  which  a 
century  of  successful  insistence  without 
actual  use  of  force  has  given  it. 

Much  as  the  Doctrine  may  be  criti- 
cised by  the  Continental  press  of  Europe, 
it  is  an  institution  of  one  hundred  years' 
standing;  it  is  something  that  its  age  is 
bound  to  make  Europe  respect.  It  was 
advanced  at  a  time  when  we  were  but 
a  small  nation  with  little  power,  and  it 
has  acquired  additional  force  and  pres- 
[16  1 


THE  MONROE  DOCTRINE 

tige  as  we  have  grown  to  our  present  size 
and  strength  and  international  influence. 
Were  we  to  abandon  the  Doctrine  and 
thus,  in  effect,  notify  the  European  gov- 
ernments that,  so  far  as  our  remonstrance 
or  interposition  was  concerned,  they 
might  take  possession  of  Santo  Domingo, 
of  Haiti,  or  of  any  of  the  Central  Ameri- 
can republics,  or  of  any  South  American 
republics  that  might  be  disturbed  by  rev- 
olution and  that  might  give  them  some 
international  excuse  for  intervention,  it 
would  be  but  a  very  short  time  before 
we  would  be  forced  into  controversies 
that  would  be  much  more  dangerous  to 
the  peace  of  this  hemisphere  than  our 
continued  assertion  of  the  Doctrine  prop- 
erly understood  and  limited. 
>I  fully  sympathize  with  the  desire  to 
make  such  countries  as  the  Argentine 
RepubHc,  Brazil,  Chile,  and  other  pow- 
ers in  South  America  that  are  acquiring 
stability  and  maintaining  law  and  order 

[  m 


THE  UNITED  STATES  AND  PEACE 

within  their  boundaries,  understand  that 
we  do  not  claim  to  exercise  over  them 
any  suzerainty  at  all  and  that  we  are 
not  tendering  our  guardianship  as  if  they 
were  children  or  as  if  they  needed  it. 
We  reserve  to  ourselves  the  right,  should 
oppression  or  injustice  be  manifested  in 
a  warlike  way  by  any  of  the  European 
countries  against  them,  and  should  they 
be  unfortunate  enough  not  to  be  able 
to  give  effective  resistance,  to  determine 
whether  it  is  not  in  our  own  interest  to 
intervene  and  prevent  an  overturning  of 
their  government  or  an  appropriation  of 
their  territory.  But  we  recognize  that 
this  possibility  is  so  remote  that  it  prac- 
tically removes  them  from  the  operation 
of  the  Monroe  Doctrine.  ^  I  am  glad  to 
see  that  Mr.  Roosevelt,  in  his  visit  to 
those  countries,  has  sought  to  impress 
them  with  the  same  view  of  the  Monroe 
Doctrine  that  I  have  thus  expressed. 
Indeed,  he  would  have  helped  them,  and 
[18] 


1 


THE  MONROE  DOCTRINE 

us,  too,  far  more  if  he  had  confined  his 
teachings  and  lectures  to  explanations 
and  limitations  of  the  Monroe  Doctrine 
and  had  not  sought  to  destroy  the  inde- 
pendence of  the  judiciary  and  demoralize 
the  administration  of  justice  in  two  con- 
tinents. 

But  it  is  said  that  we  ought  to  invite 
in  these  so-called  ABC  powers  of  South 
America  to  assist  us  in  upholding  the 
Doctrine  and  also  in  doing  what  the  Doc- 
trine, as  well  as  neighborhood  interests, 
may  lead  us  to  do  with  near-by  coun- 
tries around  the  Gulf  of  Mexico  and  the 
Caribbean  Sea.  It  is  suggested  that  we 
ought  to  establish  some  sort  of  relation- 
ship with  these  great  powers  as  members 
of  a  kind  of  hegemony  to  decide  upon 
Latin- American  questions  and  participate 
in  intervention  to  help  along  the  smaller 
countries,  and  thus  put  such  powers  on 
an  equality  with  us  in  our  American  policy 
and  give  assurance  of  our  disinterested- 
[19] 


THE  UNITED  STATES  AND  PEACE 

ness.  If  we  could  do  this  I  would  be 
glad  to  have  it  done,  because  it  would 
relieve  us  of  part  of  a  burden  and  would 
give  greater  weight  to  the  declaration  of 
the  policy.  I  would  be  glad  to  have  an 
eflfort  tactfully  made  to  this  end  and  I 
don't  want  to  discourage  it;  but  I  fear 
^  we  should  find  that  these  Powers  would 
be  loath  to  assume  responsibility  or  bur- 
den in  the  matter  of  the  weKare  of  a  gov- 
^pWKernment  like  one  of  the  Central  American 
republics,  or  Haiti  or  Santo  Domingo  so 
remote  from  them  and  so  near  to  us. 
v_i  We  attempted,  in  case  of  disturbance  in 
the  Central  American  governments  once 
or  twice,  to  interest  Mexico,  when  Mexico 
had  a  responsible  government  and  was 
very  near  at  hand,  but  President  Diaz  was 
loath  to  take  any  part  with  the  United 
States  in  such  an  arrangement,  and  we 
found  that  whatever  had  to  be  done  had 
to  be  done  largely  on  the  responsibility 
of  the  United  States. 
[20] 


THE  MONROE  DOCTRINE 

If  action  in  respect  of  any  republic  of 
South  America  were  necessary  under  the 
Monroe  Doctrine,  the  joining  of  the  A 
B  C  powers  with  the  United  States 
might  involve  suspicion  and  jealousy  on 
the  part  of  other  South  American  repub- 
Ucs  not  quite  so  prosperous  or  so  stable 
as  the  ABC  powers.  Thus,  instead 
of  helping  the  situation,  the  participa- 
tion of  part  of  the  South  American  gov- 
ernments might  only  complicate  it.  I 
know  something  about  the  character  of 
those  countries  myself,  not  from  personal 
observation  but  from  a  study  of  the  char- 
acter of  Spanish-descended  civihzations 
and  societies,  and  I  venture  to  say  that, 
sensitive  as  they  all  may  be  in  respect  to 
suspected  encroachments  of  the  United  '"^^i 
States,  they  are  even  more  sensitive  as 
between  themselves  and  their  respective 
ambitions.  During  my  administration 
Mr.  Knox,  the  secretary  of  state,  ten- 
dered the  good  oflBces  of  the  United 
[21] 


THE  UNITED  STATES  AND  PEACE 

States  as  between  South  American  gov- 
ernments who  were  bitter  against  each 
other  over  boundaries  and  other  disputes, 
and  successfully  brought  them  to  a  peace- 
ful solution;  but  in  those  controversies 
it  was  quite  apparent  that  whatever 
might  be  the  general  feeling  against  the 
United  States,  their  suspicions  of  each 
other,  when  their  interests  were  at  vari- 
ance, were  quite  as  intense.  Indeed,  it  is 
not  too  much  to  say  that  the  fear  in  the 
hearts  of  the  less  powerful  peoples  of  South 
America  of  a  South  American  hegemony 
is  more  real  than  any  genuine  fear  they 
may  have  of  the  actual  suzerainty  of 
our  government.  My  belief,  therefore,  is 
that  unless  we  could  organize  a  union  of 
all  the  countries  of  two  continents,  which 
would  be  so  clumsy  as  to  be  entirely  im- 
practicable, the  influence  of  the  United 
States  can  probably  be  exerted  in  sup- 
port of  the  Monroe  Doctrine  more  effec- 
tively and  much  less  invidiously  alone 


THE  MONROE  DOCTRINE 

than  by  an  attempt  to  unite  certain  of 
the  South  American  powers  in  an  effort 
to  preserve  its  successful  maintenance. 
I  hope  my  fear  in  this  respect  will  prove 
to  be  unfounded  and  that  the  plan  sug- 
gested may  be  successful. 

I  have  read  with  a  great  deal  of  inter- 
est the  account  given  by  Professor  Bing- 
ham of  South  American  public  opinion 
toward  the  United  States  in  his  most 
interesting  book,  which  he  calls  "The 
Monroe  Doctrine,  an  Obsolete  Shibbo- 
leth." His  views  were  based  on  an  ex- 
tended and  very  valuable  opportunity 
for  observation  in  nearly  all  the  South 
American  countries.  He  pictures  with 
great  force  the  feeling  that  is  cultivated 
by  the  press  of  those  countries  against 
the  United  States,  the  deep  suspicion  that 
the  people  of  South  America  have  toward 
her  professions  of  disinterestedness  in 
South  American  and  Central  American 
politics,  and  their  resentment  at  what 
[23] 


THE  UNITED  STATES  AND  PEACE 

they  regard  as  an  assumption  of  guard- 
ianship and  of  suzerainty  over  them,  and 
a  patronizing  attitude  which  they  beheve 
to  be  involved  in  the  maintenance  of  the 
Monroe  Doctrine.  He  sets  out  the  con- 
struction put  by  them  on  the  various 
acts  of  the  United  States,  and  the  mean 
and  selfish  and  greedy  motives  they  at- 
tribute to  her,  judging  from  speeches  by 
their  statesmen  and  politicians  and  from 
editorials  of  their  newspapers.  I  know 
something  of  the  opportunity  the  Span- 
ish language  afiFords  to  convey,  with  the 
most  studied  and  graceful  periods  and 
with  an  assumption  of  courteous  and  im- 
partial treatment,  insinuations  and  suspi- 
cions of  the  sincerity  of  a  person  or  a  gov- 
ernment against  whom  the  writer  desires 
to  awaken  the  hostihty  of  his  readers. 
Professor  Bingham,  without  discussing 
the  merits  of  the  acts  of  authorities 
of  the  United  States,  to  which  he  in- 
vites attention,  merely  gives  the  view 
[24] 


THE  MONROE  DOCTRINE 

that  the  South  American  press  of  different 
countries  took  of  those  acts.  No  one 
can  read  the  book  and  not  see  how 
unjust  is  much  of  the  criticism  of  the 
United  States.  Nevertheless,  I  quite 
agree  that  it  is  the  bounden  duty  of  this 
government  and  her  people  to  avoid  as 
much  as  possible  those  acts  which  can 
give  rise  to  a  misconstruction  of  her  mo- 
tives, and  to  take  a  course  which  shall 
deprive  them  of  any  appearance  of  a  de- 
sire to  use  her  power  in  this  hemisphere 
or  to  enforce  and  extend  the  Monroe 
Doctrine  with  a  view  to  her  selfish  ag- 
grandizement. I  know  the  attractive- 
ness of  the  Spanish-American;  I  know  his 
high-born  courtesy;  I  know  his  love  of 
art,  his  poetic  nature,  his  response  to  gen- 
erous treatment;  and  I  know  how  easily 
he  misunderstands  the  thoughtless  blunt- 
ness  of  an  Anglo-Saxon  diplomacy  and 
the  too  frequent  lack  of  regard  for  the 
feelings  of  others  that  we  have  inherited. 
[  25  ] 


THE  UNITED  STATES  AND  PEACE 

I  sympathize  deeply  with  every  effort  to 
remove  every  obstacle  to  good  feeling 
between  us  and  a  great  and  growing 
people,  if  only  we  are  not  called  upon  in 
doing  so  to  give  up  something  valuable 
to  us  and  to  the  world. 

The  injustice  of  the  attitude  which 
Professor  Bingham  and  others  who  take 
his  views  describe  as  that  of  the  South 
American  press  may  be  seen  by  one  or 
two  references.  Our  Cuban  war  was  ^ 
begun  with  the  most  unselfish  motives 
on  our  part  and  with  a  self-denying 
declaration;  but  it  has  been  flaunted  in 
South  America  as  a  war  for  aggran- 
dizement and  the  exploitation  of  new 
territory,  because  the  people  of  Porto 
Rico  desired  to  come  under  our  govern- 
ment and  we  accepted  them,  and  because 
we  found  the  Philippines  in  such  a  condi- 
tion of  anarchy  that  we  had  to  take  them 
over.  We  have  not  exploited  either  Porto 
Rico  or  the  Philippines.  We  have  only 
[26] 


THE  MONROE  DOCTRINE 

given  them  a  better  government  and 
Qiore  prosperity  and  individual  liberty 
than  they  ever  had.  We  have  promised 
the  Filipinos  that  when  their  people  ac- 
quire sufficient  education  and  knowledge 
to  make  their  government  stable  we  will 
turn  over  the  government  to  them. 
Twice  Cuba  has  been  under  our  control, 
and  twice  we  have  turned  the  island  back 
to  the  people  to  whom  we  promised  to 
do  so  when  we  entered  upon  the  war. 
It  has  cost  us  hundreds  of  millions  of 
money  and  many  valuable  lives  to  give 
her  her  independence.  Nevertheless,  our 
conduct,  as  unselfish  and  self-sacrificing 
as  history  shows,  is  treated  among  the 
South  American  people  as  an  indication 
of  our  desire  to  enlarge  our  territorial 
control.  Had  we  desired  to  extend  our 
territory,  how  easily  we  could  have  done 
it?  How  many  opportunities  have  been 
presented  to  us  that  we  have  rejected.^ 
Now,  is  it  a  reason  for  us  to  give  up  a 
[  27  1 


THE  UNITED  STATES  AND  PEACE 

doctrine   that   has   for   near   a   century 
helped  along  the  cause  of  peace  that  our 
motives  in  maintaining  it  have  been  mis- 
construed by  the  peoples  who  have  so 
much  profited  by  our  enforcing  it?     Iff 
L      we  had  entered  upon  the  policy  merely  f 
because  those  peoples  asked  us  to  assert  ^ 
it,  and  for  no  other  reason,  then  their  j 
wish  to  end  it  might  properly  be  given! 
great  weight,  but  the  doctrine  was  orig-l 
inally  declared  to  be  one  in  our  own  in-j 
terest  and  for  our  own  safety.     True,  it! 
has  greatly  strengthened  our  insistence! 
upon  the  doctrine  that  it  helped  these^** 
peoples  to  maintain  their  governmental 
integrity  and  independence.     Neverthgz 
less,  the  question  whether  we  shall  conr 
ti^^lf   it    ought    Tint,   tn   bp   rontrnllpd    hy.. 

Jhfiii-  uTiju^t  feeh'ng  that  our  continued 

^Iigjnt^ri^^'"^    ^^    ^^^    Hnptrinp^     with     its 
prnppr   h'rm'tpti^TiS;    ^^    ^^^^    ^"^^    intpmRt. 

,  is  in  some  way  or  other  a  reflection  upon 
their  national  prestige  f^j^A  intAmaiirkrutJ 

[28] 


THE  MONROE  DOCTRINE 

standing-     It    has    made    for 

ninety  years.  Jffihy  will  it  not  make  for 

peace  the  next  mi(^  himdrpH  ypars? 

But  it  is  said  that  the  doctrine  has 
been  greatly  extended  and  that  it  has 
led  to  intermeddling  by  our  government 
in  the  politics  of  the  smaller  countries 
like  Santo  Domingo  and  the  Central 
American  republics,  and  that  we  are  ex- 
ercising a  protectorate  of  a  direct  char- 
acter over  some  of  them.  What  we  are 
doing  with  respect  to  them  is  in  the  in- 
terest of  civilization,  and  we  ought  to  do 
it  to  aid  our  neighboring  governments 
whether  the  Monroe  Doctrine  prevails  or 
not.  My  hope,  as  an  earnest  advocate 
of  world  peace,  is  that  ultimately  by  in- 
ternational agreement  we  shall  establish  a 
court,  like  that  of  The  Hague,  into  which 
any  government  aggrieved  by  any  other 
government  may  bring  the  offending  gov- 
ernment before  an  impartial  tribunal  to 
answer  for  its  fault  and  to  abide  the  judg- 
[  29] 


THE  UNITED  STATES  AND  PEACE 

ment  of  the  court.  Now,  it  is  utterly  im- 
possible that  the  peace  of  the  world  may 
be  brought  about  under  such  an  arrange- 
ment as  long  as  there  are  governments 
that  cannot  maintain  peace  within  their 
own  borders  and  whose  instability  is  such 
that  war  is  rather  the  normal  than  the 
exceptional  status  within  their  territory. 
xOne  of  the  most  crying  needs  in  the  cause 
of  general  peace  is  the  promotion  of  sta- 
bility in  government  in  badly  governed 
territory.  This  has  been  the  case  with 
Santo  Domingo  and  Haiti.  It  has  been 
true  in  a  majority  of  the  republics  of  Cen- 
tral America  and  until  recently  was  true 
in  the  northern  part  of  South  America. 
Revolutions  in  those  countries  have  been 
constant,  peace  has  been  the  exception, 
and  prosperity,  health,  happiness,  law  and 
order  have  all  been  impossible  under 
such  conditions  and  in  such  governments. 
The  nearer  they  are  to  our  borders  the 
more  of  a  nuisance  they  have  become  to 
[30] 


THE  MONROE  DOCTRINE 

US  and  the  more  injurious  they  are  to  our 
national  interests.  It  was  the  neighbor- 
hood nuisance  that  led  to  the  Cuban  war 
and  justified  it.  Now,  when  we  properly 
may,  with  the  consent  of  those  in  au- 
thority in  such  governments  and  with- 
out too  much  sacrifice  on  our  part,  aid 
those  governments  in  bringing  about  sta- 
bility and  law  and  order,  without  involv- 
ing ourselves  in  their  civil  wars,  it  is 
proper  national  policy  for  us  to  do  so. 
It  is  not  only  proper  national  policy  but 
it  is  international  philanthropy.  We  owe 
it  as  much  as  the  fortunate  man  owes  aid 
to  the  unfortunate  in  the  same  neighbor- 
hood and  in  the  same  community.  We 
are  international  trustees  of  the  prosper- 
ity we  have  and  the  power  we  enjoy,  and 
we  are  in  duty  bound  to  use  them  when 
it  is  both  convenient  and  proper  to  help 
our  neighbors.  When  this  help  prevents 
the  happening  of  events  that  may  prove 
to  be  an  acute  violation  of  the  Monroe 
[31  ] 


THE  UNITED  STATES  AND  PEACE 

Doctrine  by  European  governments,  our 
duty  in  this  regard  is  only  increased  and 
amplified.  -  Therefore  it  was  that  Mr. 
Roosevelt  mediated  between  Venezuela 
and  the  governments  of  England,  Ger- 
many, and  Italy,  as  I  have  already  ex- 
plained. So  it  was  in  the  case  of  Santo 
Domingo,  where  a  similar  situation  was 
foreshadowed,  and  in  which,  in  order  to 
relieve  that  situation,  we  assumed  the 
burden  of  appointing  tax-collectors  and 
custom-house  oflSLcials  who  were  under  our 
protection  and  who  were  saved  from  rev- 
olutionary attacks.  We  thus  took  awaM 
any  motive  for  revolution,  because  i, 
could  not  be  successful  without  the  funds 
which  the  seizure  of  custom-houses  anc 
the  instrumentalities  for  the  collection  o: ' 
taxes  would  furnish.  This  arrangement 
has  been  most  profitable  to  the  people  of 
Santo  Domingo  and  has  relieved  them 
from  a  succession  of  revolutions  that  had 
been  their  fate  before  it  was  adopted. 
[32] 


THE  MONROE  DOCTRINE 

^  The  policy  does  not  involve  and  ought 
not  to  involve  a  protectorate  or  any 
greater  intervention  in  their  internal 
affairs  or  a  control  of  them  than  this 
power  to  protect  custom-houses  may 
involve.  This  is  ample  to  secure  pacifi- 
cation. 

We  cannot  be  too  careful  to  avoid 
forcing  our  own  ideas  of  government  on 
peoples  who,  though  favoring  popular 
government,  have  such  different  ideas  as 
to  what  constitutes  it,  and  whose  needs 
in  respect  to  the  forms  of  government 
that  promote  prosperity  and  happiness 
for  them  are  widely  variant  from  our 
own  requirements.  < 

Arrangements  similar  to  that  made 
with  Santo  Domingo  were  sought  from 
the  United  States  by  the  governments 
of  Honduras  and  Nicaragua,  and  treaties 
were  made,  but  they  were  defeated  by 
the  Senate  of  the  United  States  without 
good  ground,  as  it  seems  to  me.  I  am 
[  33  ] 


THE  UNITED  STATES  AND  PEACE 

glad  to  note  that  the  present  administra- 
tion is  looking  with  more  favor  upon 
treaties  of  this  kind  than  its  present  sup- 
porters in  the  Senate  were  willing  to  give 
them  when  they  were  tendered  to  them 
for  ratification  by  a  Republican  adminis- 
tration. 

vWhen  we  come  to  Mexico,  where  an- 
archy seems  now  to  reign,  the  question 
is  a  most  delicate  one.  Intervention  by 
force  means  the  expenditure  of  enormous 
treasure  on  our  part,  the  loss  of  most  val- 
uable lives,  and  the  dragging  out  of  a  te- 
dious war  against  guerillas,  in  a  track- 
less country,  which  will  arouse  no  high 
patriotic  spirit  and  which,  after  we  have 
finished  it  and  completed  the  work  of 
tranquillity,  will  leave  us  still  a  problem 
full  of  diflSculty  and  danger.  All  that 
those  of  us  who  are  not  in  the  govern- 
ment can  do  is  to  support  the  hands  of 
the  President  and  the  secretary  of  state, 
and  to  present  to  the  European  powers 
[34] 


THE  MONROE  DOCTRINE 

and  the  world  a  solid  front,  with  the 
prayer  that  the  policy  which  is  being 
pursued,  whatever  it  may  be,  will  be  a 
successful  one  and  relieve  us  from  the 
awful  burden  of  such  a  war  as  that  I  have 
described.  In  spite  of  the  discouraging 
conditions  in  Mexico,  however,  the  pres- 
ent situation  illustrates  the  influence  of 
the  Monroe  Doctrine  on  the  attitude  of 
the  European  powers,  which,  in  spite  of 
the  injury  to  the  property  and  persons  of 
their  nationals,  look  to  the  United  States 
as  the  guide  whom  they  are  willing  to 
follow  in  working  out  a  solution.  The 
condition  of  Mexico  is  bad  enough,  to  be 
sure,  but  if  it  had  involved  us  in  European 
complications,  such  as  would  have  been 
likely  to  arise  had  there  been  European 
intervention,  its  consequences  might  have 
been  a  great  deal  worse. 

Exception  is  taken  to  the  resolution 
which    the    Senate  adopted   in  August, 
1912,  in  which  it  was  declared: 
[  35  1 


THE  UNITED  STATES  AND  PEACE 

That  when  any  harbor  or  other  place  on 
the  American  continents  is  so  situated  that 
the  occupation  thereof  for  naval  or  military 
purposes  might  threaten  the  communications 
or  the  safety  of  the  United  States,  the  gov- 
ernment of  the  United  States  could  not  see 
without  grave  concern  the  possession  of  such 
harbor  or  other  place  by  any  corporation  or 
association  which  has  such  a  relatiqn  ta  an- 
other government,  not  American,  as  to  give 
that  government  practical  power  of  control 
for  national  purposes. 

It  suffices  to  say  that  this  is  not  an 
enlargement  of  the  Monroe  Doctrine.  It 
only  calls  special  attention  to  a  way  of 
indirection  by  which  it  can  be  violated. 
The  policy  of  making  this  announce- 
ment at  the  time  may  perhaps  be  ques- 
tioned, but  that  such  an  indirect  method 
of  securing  a  military  outpost  threaten- 
ing to  the  safety  of  the  United  States 
would  be  injurious  to  her  interests  does 
not  admit  of  doubt. 

I  do  not  intend  here  to  go  into  the 
question  of  the  merits  of  the  controversy 
[36  1 


THE  MONROE  DOCTRINE 

over  the  justice  of  our  acquisition  of  the 
Canal  Zone,  enabling  us  to  construct  the 
Panama  Canal.  It  would  involve  too 
long  a  discussion  and  is  not  relevant  to 
the  subject-matter  of  this  chapter,  be- 
cause what  was  done  in  that  case  by  our 
government  was  not  any  assertion  of  the 
Monroe  Doctrine,  was  not  justified  on 
the  ground  of  the  Monroe  Doctrine,  and 
our  right  to  do  what  we  did  was  based  on 
very  dififerent  principles.  Earnest  and 
sincere  efforts  were  made  in  my  adminis- 
tration to  satisfy  the  United  States  of 
Colombia.  A  treaty  was  made  with  her 
representative,  in  Mr.  Roosevelt's  ad- 
ministration, which  seemed  fair,  but  it 
was  immediately  rejected.  All  efforts  to 
secure  an  adjustment  of  her  grievances 
have  failed,  and  recently  negotiations  were 
postponed  by  her,  with  the  behef  that 
the  incoming  administration,  of  different 
political  complexion,  would  be  more  will- 
ing than  mine  to  do  what  she  regards  as 
[37] 


THE  UNITED  STATES  AND  PEACE 

exact  justice  to  her.  We  should,  there- 
fore, await  with  hope  that  the  present 
administration  may  solve  what  for  us 
was  an  insoluble  difficulty. 

Mr.  Root,  whose  great  constructive 
labors  in  the  cause  of  world  peace  have 
just  received  most  just  recognition  in  the 
Nobel  Prize,  in  his  visit  to  South  Amer- 
ica attempted  to  convince  the  people  of 
those  republics  that  we  wish  no  more  ter- 
ritory and  that  we  wish  only  the  pros- 
perity of  all  our  neighbors.  And  Mr. 
Knox,  in  his  visit  to  Venezuela  and  to 
all  the  republics  of  the  West  Indies  and 
Central  America,  made  the  same  effort. 
I  hope  that  Mr.  Roosevelt  may  carry  the 
same  message  to  South  America.  Doubt- 
less, he  is  doing  so. 

After  some  years  I  hope  that  a  con- 
sistent course  on  our  part  may  effect  an 
abatement  of  the  present  feeling  described 
by  Professor  Bingham  and  others.  But, 
however  that  may  be,  and  whatever  in- 
[38] 


THE  MONROE  DOCTRINE 

justice  the  South  American  peoples  may 
do  us  in  suspecting  us  of  selfish  plans 
against  them  and  their  territory,  we  ought 
not  to  allow  the  present  expressed  hostil- 
ity to  the  Monroe  Doctrine,  which  really 
involves  no  assertion  of  suzerainty  or  sov- 
ereignty over  them,  to  change  our  course. 
The  doctrine  is  based  on  a  wise  policy  in 
our  own  interest  to  exclude  from  this 
hemisphere  the  selfish  political  interfer- 
ence of  European  governments  and  their 
appropriation   of  territory,  not  for  the 
purpose  of  increasing  our  power  or  terri 
tory,  but  for  the  purpose  of  promoting 
the  prosperity,  independence,  and  happi 
ness  of  the  peoples  of  these  two  conti 
nents  and  so  of  insuring  our  own  peao 
and  safety. 


[39] 


CHAPTER  II 

SHALL  THE  FEDERAL  GOVERN- 
MENT PROTECT  ALIENS  IN 
THEIR  TREATY  RIGHTS? 

The  spread  of  democracy  throughout  the 
world  and  the  influence  that  each  people 
has  in  determining  the  foreign  policy  of 
its  government  have  necessarily  affected 
the  discussion  of  useful  agencies  for  the 
avoidance  of  war.  Before  the  nineteenth 
century,  wars  largely  turned  upon  the 
interests  of  dynasties  and  the  ambitions 
and  hatreds  of  kings,  but  now  wars 
between  countries  having  stable  govern- 
ments are  rarely  begun  without  the  wish 
of  the  majority  of  their  respective  peo- 
ples. Even  a  country  like  Russia,  in 
the  government  of  which  the  people  are 
[40] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

not  supposed  to  have  a  great  voice,  was 
obliged  to  make  peace  in  the  Japanese 
war  largely  because  her  people  opposed 
its  continuance.  Therefore,  it  becomes 
important,  in  the  maintenance  of  peace, 
that  each  stable  government  representing 
its  people  in  its  foreign  relations,  and 
being  answerable  for  them  to  another 
people,  should  be  able  to  perform  its 
promises  promptly,  and  should  certainly 
not  keep  them  only  to  the  ear  and  break 
them  to  the  hope.  Nice  distinctions 
based  on  precedents  in  international  law 
have  more  weight  with  learned  states- 
men representing  a  dynasty  than  with  an 
angered  people.  When  they  suffer  in- 
justice they  look  to  the  substance  of  the 
international  contract  for  their  protec- 
tion, and  if  that  is  not  performed,  and 
the  breach  is  an  outrage  upon  their  own 
race  and  their  own  kith  and  kin,  their 
indignant  feeling  is  dangerous  to  the 
peace  between  the  two  nations. 
[41] 


THE  UNITED  STATES  AND  PEACE 

In  one  of  my  visits  to  Japan,  as  secre- 
tary of  war,  I  had  the  pleasure  of  meeting 
and  talking  with  Count  Hayashi,  one  of 
the  great  statesmen  and  diplomats  of  that 
wonderful  empire,  and  recently  deceased. 
We  were  discussing  very  freely  the  re- 
lations between  Japan  and  the  United 
States,  and  he  said  that  he  felt  confident 
that  I  was  right  in  saying  that  the  United 
States  had  no  desire  for  a  war  with  Japan, 
but,  on  the  contrary,  wished  to  avoid  it 
by  every  honorable  means.  He  expressed 
the  hope  that  I  credited  his  statement  that 
the  empire  of  Japan  and  those  responsible 
for  its  government  were  equally  anxious 
to  make  the  peace  between  the  two  coun- 
tries permanent  and  abiding.  "But," 
said  he,  "my  people  have  grown  much  in 
national  stature.  They  have  won  suc- 
cesses, civil  and  military.  They  have  a 
deep  love  of  their  country  and  of  their 
fellow  countrymen,  and  perhaps  they 
have  what  you  will  call  'patriotic  self- 
[42] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

conceit.'  However  this  may  be,  their 
sensitiveness  as  a  nation  has  increased, 
and  it  makes  them  deeply  resent  an  in- 
justice or  an  invidious  discrimination 
against  them  in  a  foreign  country  or  by 
a  foreign  people.  The  only  possible  dan- 
ger of  a  breach  between  our  two  nations 
that  I  can  imagine  would  be  one  growing 
out  of  the  mistreatment  of  our  people, 
living  under  the  promised  protection  of 
the  United  States,  through  the  lawless 
violence  of  a  mob  directed  against  them 
as  Japanese." 

Now,  what  is  true  of  the  relation  of 
these  two  countries  is  likely  to  be  true 
of  the  relation  between  the  United  States 
and  peoples  of  other  countries.  With  al- 
most every  nation  we  have  a  treaty  in 
which  each  contracting  party  agrees  that 
the  nationals  of  the  other  party  may  re- 
side within  its  jurisdiction  and,  comply- 
ing with  the  laws,  may  legally  pursue 
their  vocations  or  business  and  enjoy  the 
[43] 


THE  UNITED  STATES  AND  PEACE 

same  protection  to  life,  liberty,  and  prop- 
erty that  the  citizens  of  the  contracting 
country  enjoy.  This  is,  perhaps,  the  most 
common  clause  in  the  many  treaties  of 
amity  and  commerce  that  now  control 
the  relations  between  the  nations  of  the 
world. 

X  Since  1811  there  have  been  many  cases 
of  mob  violence  against  aliens,  in  which 
they  have  been  killed  or  grievously  in- 
jured. And  while  in  all  these  cases  we 
denied  any  liability.  Congress  has  gen- 
erally made  payments  to  those  who  were 
injured  and  to  the  famiUes  of  those 
who  were  killed.  In  some  cases  the 
amount  paid  was  recited  in  the  act  of 
appropriation  to  be  a  gratuity  without 
admission  of  liability.  In  other  cases  the 
amount  was  paid  without  such  reserva- 
tion. In  no  case  that  I  have  been  able 
to  discover  have  the  perpetrators  of  these 
outrages  been  punished.  In  all  the  cases 
the  local  authorities  have  evidently  sym- 
[  44  ] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

pathized  with  the  mob  spirit  and  pur- 
pose or  have  been  so  terrorized  by  it  as 
to  avoid  making  a  judicial  investigation 
of  real  thoroughness.  The  results  have 
thus  been:  first,  the  mob;  second,  the 
felonious  assault,  or  murder,  and  destruc- 
tion of  property;  third,  the  farce  of  a 
State  investigation;  fourth,  the  indem- 
nity to  the  injured  and  the  family  of  the 
dead;  and,  fifth,  the  complete  immxmity 
of  the  guilty.  Such  a  list  of  outrages, 
reaching  clear  from  1811  down  to  1910, 
without  punishment,  is  not  a  record  in 
which  we  can  take  pride. 

I  propose  to  consider  here  whether  any- 
thing can  be  done  to  change  this  state 
of  affairs  so  long  continued  that  recurring 
incidents  of  the  same  kind  constitute  it 
a  custom.  I  feel  confident  that  some- 
thing effective  can  be  done  to  this  end 
through  valid  federal  legislation  confer- 
ring on  the  federal  government  and  courts 
executive  and  judicial  jurisdiction  to  pre- 
[45] 


THE  UNITED  STATES  AND  PEACE 

vent  and  punish  these  crimes  against 
ahens  in  violation  of  their  treaty  rights. 
In  some  of  such  cases  the  feehng  be- 
tween the  countries  involved  has  run 
high,  and  with  the  increased  popular  con- 
trol of  foreign  policies  we  may  expect 
these  incidents  to  become  more  dangerous 
to  our  peace.  In  letters  of  our  secretaries 
of  state,  in  answer  to  complaints  of  for- 
eign governments  in  such  cases,  attention 
is  called  to  the  fact  that  our  general 
government  has  no  jurisdiction  to  direct 
the  prosecution  under  federal  law  of  the 
perpetrators  of  these  outrages,  and  the 
secretaries  have  been  content  with  the 
statement  that  the  persons  killed  or  in- 
jured have  had  the  same  protection  that 
citizens  of  this  country  have  had,  which, 
I  may  add,  in  all  the  instances  under  ex- 
amination, was  no  protection  at  all.  The 
secretaries  have  pointed  out  that  if  pro- 
tection was  needed  or  punishment  was 
to  be  inflicted,  it  was  the  duty  of  the 
[46] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

State  authorities  to  give  it,  as  would 
have  been  the  case  had  the  persons  killed 
or  feloniously  assaulted  been  American 
citizens.  We  make  a  promise  and  then 
we  let  somebody  else  attempt  to  perform 
it,  and  when  it  is  not  performed  and  it 
never  is,  we  say:  "We  are  not  responsible 
for  this.  It  is  somebody  else's  failure, 
and,  besides,  you  are  not  suflfering  any 
worse  than  our  own  citizens  in  this  mat- 
ter, because  they  enjoy  the  same  absence 
of  protection  extended  to  your  people. 
However,  say  no  more  about  it.  We'll 
salve  your  feelings  by  a  little  money,  the 
amount  of  which  we'll  fix."  •  Now,  we 
know  the  fact  to  be  from  this  history 
that  in  such  cases  generally  there  is  not 
the  slightest  hope  through  the  State 
courts  of  having  proper  punishment  in- 
flicted, or  even  attempted.  In  such  cases 
the  juries  are  generally  drawn  from  the 
immediate  neighborhood  of  the  county 
and  town  in  which  the  outrage  is  com- 
[47] 


THE  UNITED  STATES  AND  PEACE 

mitted,  and  the  case  ultimately  reduces 
itself  to  the  result  that  the  grand  jury, 
or,  if  an  indictment  is  found,  which  is 
almost  as  rare  as  a  conviction,  the  petit 
jury,  will  be  composed  of  either  the 
criminals  themselves  or  of  their  relatives 
and  neighbors  and  sympathizers,  and  the 
prosecution  is  a  farce. 

It  does  not  soothe  one's  pride  of  coun- 
try to  note  the  number  of  lynchings  of 
our  own  citizens  that  go  unwhipped  of 
justice  and  that  are  properly  held  up  to 
us  with  scorn  whenever  we  assume,  as 
we  too  frequently  do,  a  morality  higher 
than,  and  a  government  better  than,  that 
of  other  peoples.  Nor  is  our  feeling  in 
this  regard  rendered  less  acute  by  hear- 
ing from  the  governors  of  some  of  our 
States  expressions  brazenly  defending  and 
approving  such  lynchings.  Still  more  em- 
barrassing is  our  situation,  when  we  are 
called  upon  to  explain  to  a  government 
with  which  we  have  made  a  solemn  cove- 
[48] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

nant  to  protect  its  citizens  or  subjects  in 
their  right  of  peaceable  residence  here 
and  in  the  enjoyment  of  business  and 
happiness  under  the  segis  of  the  United 
States,  that,  while  we  did  make  a  cove- 
nant, it  ought  to  have  known  that  under 
our  system  we  as  a  government  had 
no  means  of  performing  that  covenant  or 
of  punishing  those  who,  as  our  citizens, 
had  grossly  violated  it.  For  lynchings  of 
our  own  citizens  within  the  jurisdiction 
of  the  State  we  can  say  to  ourselves, 
for  we  have  no  other  plea,  that  under 
the  form  of  our  government  such  crimes 
are  a  State  matter,  and  if  the  peo- 
ple of  a  State  will  not  provide,  for  their 
own  protection,  a  machinery  in  the  ad- 
ministration of  justice  that  will  prevent 
such  lawless  violence,  and  a  public  opinion 
to  make  it  effective,  then  it  is  for  them  to 
bear  the  ignominy  of  such  a  condition. 
But  when,  in  the  case  of  the  lynchings  of 
aliens,  whom  we  have  plighted  our  na- 
[49] 


THE  UNITED  STATES  AND  PEACE 

tional  faith  to  protect,  the  fact  is  that 
the  Federal  Government  has  the  power  to 
enact  legislation  to  set  its  own  adminis- 
tration of  justice  going  by  its  own  prose- 
cuting oflBcers  and  through  its  own  courts, 
and  has  not  done  so,  we  may  well  hang 
our  heads  in  the  face  of  adverse  criticism. 
Such  legislation  need  not  find  its  only 
reason  in  our  pride  of  country  and  our 
commendable  desire  to  be  considered  in 
the  first  rank  of  civilized  nations,  obser- 
vant of  treaty  obligations  and  earnest  in 
the  protection  of  the  rights  both  of  our 
own  citizens  and  our  foreign  guests.  A 
much  stronger  reason  for  such  legislation 
is  in  the  Federal  Government's  taking 
over  the  right  to  protect  itself  and  all  the 
people  against  the  danger  of  war  that 
may  be  thrust  on  us  by  the  lawless,  cruel, 
prejudiced  action  of  the  people  of  a  town, 
a  city,  or  a  county  in  dealing  with  sub- 
jects or  citizens  of  other  countries.  It 
might  well  be  that  the  race  prejudice  of 
[50] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

such  a  community  would  carry  us  into 
war,  and  thus  sacrifice  thousands  of  val- 
uable citizens  drawn  from  the  whole 
country,  and  consume  hundreds  of  mil- 
lions of  treasure,  to  be  met  by  taxation 
upon  all  the  people  of  the  United  States. 
Ought  not  the  government,  therefore,  to 
insist,  should  not  all  the  people  of  the 
United  States  require,  that  their  execu- 
tive at  Washington,  with  a  full  knowledge 
of  our  delicate  relations  to  the  foreign 
sovereign  whose  subjects  have  been  mur- 
dered, should  have  power  enough  to  set 
the  whole  prosecuting  and  detective  ma- 
chinery of  the  government  at  work  to 
bring  the  ringleaders  of  such  mobs  to 
trial  before  juries  summoned  from  a  wider 
vicinage  than  that  of  the  local  commu- 
nity in  which  the  outrage  was  committed, 
and  free  from  the  sympathy  and  terror- 
ism there  likely  to  exist? 

But  it  is  said  that  the  dead  are  not 
protected  or  restored  to  life  by  punish- 
[51] 


THE  UNITED  STATES  AND  PEACE 

ment  of  the  malefactors,  that  those  who 
are  injured  have  no  right  to  criminal 
prosecutions,  which  are  matters  of  State 
concern  only,  and  that,  as  the  injury  has 
been  done,  if  pecuniary  indemnity  is 
granted  by  the  general  government,  all 
that  the  victims  can  properly  demand  is 
given  them.  I  am  not  discussing  this  from 
the  standpoint  of  the  victims  at  all.  I  am 
discussing  it  from  the  standpoint  of  our 
own  governmental  self-respect,  safety,  and 
freedom  from  in4:ernational  offence.  It 
is  true  that  the  only  punishment  of  per- 
petrators to  such  an  outrage  must  come 
after  the  outrage;  but  if  the  ringleaders 
of  one  mob  in  a  United  States  court 
were  hanged  for  murder,  the  number 
of  future  lynchings  of  foreigners  would 
be  reduced  in  direct  ratio  to  the  cer- 
tainty of  a  repetition  of  that  kind  of  jus- 
tice. I  have  had  occasion  to  say  before, 
and  I  say  again,  that  the  manner  of  trial 
in  the  Federal  courts,  in  which  the  judge 
[52] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

has  the  same  control  of  the  trial  that  he 
has  at  common  law,  can  assist  the  jury- 
in  its  investigation  of  facts,  and  can  take 
charge  of  the  trial  out  of  the  hands  of 
the  counsel  for  the  defence,  is  a  terror  to 
evil-doers.  While  in  the  Eastern .  State 
courts,  justice  in  crimes  of  violence  is 
generally  meted  out  with  even  hand, 
in  the  Western  and  Southern  State  courts 
this  is  not  true,  and  the  difference  be- 
tween the  administration  in  the  Federal 
courts  and  in  the  State  courts  in  such 
States  is  well  known  to  those  who  are 
likely  to  become  criminals.  The  cer- 
tainty with  which  mail  robbers  have  been 
brought  to  justice  makes  every  man  who 
thinks  of  robbing  the  mail  consider  the 
chances  of  escape  from  Uncle  Sam.  In- 
deed, cases  have  occurred  in  which  train 
robbers  have  religiously  refrained  from 
sacking  the  mail-car  in  order  to  avoid 
the  federal  jurisdiction.  Moreover,  in 
cases  of  mob  violence  against  aliens,  the 
[53] 


THE  UNITED  STATES  AND  PEACE 

direct  energetic  action  of  the  National 
Government  under  the  eye  of  the  com- 
plaining foreign  ambassador  at  Washing- 
ton would  itself  take  the  sting  out  of  the 
incident,  and  minimize  its  danger  as  a 
cause  for  bad  feeling  between  the  two 
countries. 

Of  course,  every  one  recognizes  that  the 
government  of  the  United  States  cannot 
guarantee  the  detection  and  arrest  of  the 
criminals  in  such  cases,  or  contract  that 
when  they  are  caught  and  tried,  convic- 
tion will  necessarily  follow.  In  no  civilized 
country  can  this  be  assured,  and  this  cir- 
cumstance is  an  implied  term  of  every 
treaty  promise  of  this  sort.  But  that 
uncertainty  does  not  prevent  courage, 
promptness,  and  energy  on  the  part  of  the 
marshals  and  detective  agents  of  the  gov- 
ernment in  efforts  to  identify  and  arrest  the 
offenders  and  to  find  the  evidence  against 
them,  or  efficiency  on  the  part  of  the 
prosecuting  officers  in  properly  preparing 
[54] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

the  case  for  the  grand  and  petit  juries. 
It  is  the  utter  absence  of  any  sincere  ef- 
fort of  the  local  authorities  in  such  cases 
to  bring  the  criminals  to  justice  that  nat- 
urally angers  foreign  peoples  when  they 
are  asking  reparation  for  the  awful  results 
of  mob  violence.  It  is  our  actual  help- 
lessness, and  our  hopelessness  of  any  re- 
medial measures  to  prevent  a  recurrence 
of  such  outrages,  that  give  the  futile  ne- 
gotiation such  a  deplorable  color  in  the 
eyes  of  the  injured  nation. 

We  can  all  remember  the  deep  feeling 
aroused  in  our  whole  people  over  the 
massacre  of  the  Jews  in  parts  of  Russia 
and  the  intense  indignation  that  mani- 
fested itself  among  their  coreligionists  in 
this  country,  and  how  sceptical  all  our 
people  were  concerning  official  denials  of 
governmental  responsibility  for  such  out- 
rages. Let  us  try  to  look  at  lynchings 
of  aliens  in  this  country  from  the  stand- 
point of  their  fellow  countrymen  at 
[55] 


THE  UNITED  STATES  AND  PEACE 

home.  In  the  utter  absence  of  protec- 
tion or  attempted  punishment  of  the 
murderers,  can  we  wonder  that  there 
should  be  a  deep-seated  suspicion  on 
their  part  that  the  bloody  riots  have  been 
with  either  the  connivance  or  acquiescence 
of  our  authorities? 

Federal  legislation  which  would  remedy 
the  present  great  defect  in  the  powers  of 
the  National  Government  to  protect  aliens 
in  their  treaty  rights  has  been  proposed  to 
Congress  a  number  of  times  and  has  en- 
countered serious  opposition.  The  ques- 
tion was  submitted  to  a  committee  of 
the  American  Bar  Association  that  made 
a  report  in  1892,  in  which  the  constitu- 
tionality of  such  legislation  was  doubted 
and  its  wisdom  was  vigorously  denied. 
We  must  assume  that  the  reasons  stated 
by  the  committee  in  that  report  are  those 
which  have  moved  Congress  to  withhold 
the  action  for  which,  in  my  judgment, 
there  is  a  crying  need.  It  is  greater  now 
than  ever  it  was.  It  cannot  be  said  that 
15Q] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

respect  for  the  law  or  constituted  author- 
ity has  increased  in  this  country.  Espe- 
cially has  it  been  weakened  in  those  com- 
munities where  class  or  race  feeling  seeks 
expression.  Nor  is  the  administration  of 
criminal  justice  in  the  States  in  such  cases 
likely  to  be  more  prompt  or  certain  in  the 
future  than  in  the  past.  It  is  in  such  juris- 
dictions that  the  innovation  of  recall  of 
executive  officers  is  in  vogue — a  device 
which  is  not  calculated  to  make  gover- 
nors or  sheriffs  or  prosecuting  attorneys 
more  active  in  their  arrest  and  prosecu- 
tion of  mob  leaders,  who  are  too  often 
only  exponents  of  local  feeling  and  have 
the  sympathy  of  the  vicinage.  When  we 
add,  as  we  may,  that  in  many  such  States 
the  recall  of  judges  also  has  just  come 
into  use,  we  can  understand  how  utterly 
futile  it  is  to  expect  that  there  will  be  any 
improvement  in  making  good  the  gov- 
ernment's promise  to  aliens  through  such 
official  agencies. 

In  order  to  meet  the  arguments  of  those 
[57] 


THE  UNITED  STATES  AND  PEACE 

who  oppose  this  legislation,  I  shall  run 
over  the  objections  that  were  presented 
by  the  committee  of  the  American  Bar 
Association  to  whose  report  I  have  re- 
ferred. I  ought  to  say  in  advance,  with 
respect  to  the  committee,  that  it  was  ev- 
idently composed  of  strict  construction- 
ists of  the  Constitution,  that  their  re- 
port was  not  adopted  by  the  American 
Bar  Association,  but  that  instead  they 
were  discharged  from  the  consideration 
of  the  subject,  and,  because  of  divided 
views  in  the  association,  a  resolution  was 
adopted  declaring  it  inexpedient  for  the 
association  to  make  any  recommendation 
to  Congress  on  the  subject.  The  refer- 
ence of  the  subject  to  the  committee  was 
prompted  by  the  then  recent  lynching  of 
nine  Italians  confined  in  a  New  Orleans 
jail.  A  bill  had  been  introduced  into 
Congress  to  confer  on  Federal  courts 
jurisdiction  to  try  and  punish  perpetra- 
tors of  such  outrages. 
[58] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

The  first  reason  given  as  against  such 
legislation  was  that  outrages  equally 
shocking  as  that  at  New  Orleans  had  oc- 
curred in  the  past  without  suggesting  any 
necessity  for  interfering  with  the  powers 
of  the  States  to  punish  crime.  It  might 
have  been  added  that  no  one  had  ever 
been  brought  to  justice  for  the  commis- 
sion of  any  of  the  outrages  of  a  similar 
character  that  had  been  committed  since 
1811.  Just  because  a  glaring  defect  has 
been  allowed  to  exist  for  a  century,  is 
that  any  reason  why  we  should  not  now 
take  steps  to  remedy  it.^^ 

The  second  objection  was  that  in  more 
than  a  century  only  seven  cases  have 
occurred  to  which  by  any  possibility  this 
legislation  could  apply. 

In  answer  to  this,  I  can  only  set  out 
an  official  list  of  the  outrages  committed 
in  recent  years. 

At  Rock  Springs,  Wyoming,  on  No- 
vember 30,  1885,  there  was  an  armed  at- 
[59] 


THE  UNITED  STATES  AND  PEACE 

tack  by  one  hundred  men  on  a  Chinese 
settlement  in  a  mining  town,  in  which  all 
the  houses  were  burnt,  and  in  which 
twenty-eight  Chinamen  lost  their  Uves, 
sixteen  were  wounded,  and  all  their  prop- 
erty was  destroyed. 

In  a  similar  attack  in  Squak  Valley, 
Washington,  three  Chinamen  were  killed 
and  four  wounded. 

At  Orofino,  in  Idaho,  five  Chinese  were 
killed. 

At  Anaconda,  in  Montana,  four  China- 
men were  killed. 

At  Snake  River,  Oregon,  ten  Chinamen 
were  killed. 

In  Juneau,  Alaska,  one  hundred  Chi- 
nese were  expelled  by  lawless  violence 
from  their  homes  and  the  territory. 

In  an  official  note  of  February  15, 1886, 
riots  were  reported  at  Bloomfield,  Red- 
ding, Boulder  Creek,  Eureka,  and  other 
towns  in  California,  involving  murder, 
arson,  and  robbery,  and  it  was  added  that 
[60] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

thousands  of  Chinese  had  been  driven 
from  their  homes. 

Nine  Italians  were  lynched  in  New 
Orleans  in  1891. 

In  August,  1895,  one  Mexican  was 
lynched  in  California. 

In  October,  1895,  one  Mexican  was 
lynched  in  Texas. 

In  1895  three  Italians  were  lynched  at 
Walsenberg,  Colorado. 

In  1896  three  Italians  were  lynched  at 
Hahnville,  Louisiana. 

In  1899  three  Italians  were  lynched  at 
Tallulah,  Louisiana. 

In  1901  three  Italians  were  lynched  at 
Erin,  Mississippi. 

In  1910  one  Italian  was  lynched  in 
Florida. 

This  list,  it  seems  to  me,  is  a  sufficient 
answer  to  the  suggestion  made  by  the 
committee  that  such  events  do  not  occur 
with  sufficient  frequency  to  require  re- 
form, especially  when  we  consider  in  con- 
[61] 


THE  UNITED  STATES  AND  PEACE 

nection  with  these  eases  the  recent  very 
acute  feeHng  over  the  treatment  of  Japa- 
nese subjects  in  Cahfornia. 

The  third  objection  by  the  committee 
to  Federal  control  of  such  prosecutions 
was  that  two  of  the  outrages  against  aliens 
were  in  territories  in  control  of  the  Fed- 
eral Government,  and  no  better  enforce- 
ment of  the  law  was  shown  there  than 
in  State  jurisdiction.  They  were  in  terri- 
tories under  the  control  of  territorial  gov- 
ernments, with  the  same  weaknesses  that 
a  State  government  has,  with  prosecutions 
in  a  county,  with  the  jury  drawn  from 
the  immediate  vicinage  and  under  the 
terrorism  of  a  small  locality,  which  is  a 
very  different  thing  from  prosecutions  in 
the  regular  Federal  courts. 

The  committee's  fourth  objection  was 
that  the  suggestion  of  this  legislation  has 
not  come  in  any  case  from  a  foreign  power 
with  whom  we  are  in  treaty  relations,  and 
that  the  demands  pressed  upon  the  United 
[62] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

States  Government  have  been  almost  uni- 
formly not  so  much  for  punishment  of 
the  assailants  as  for  pecuniary  indem- 
nity, which  the  injured  parties  had  al- 
ready the  right  to  seek  in  the  United 
States  courts. 

This  statement  is  inaccurate.  In  many 
of  the  instances  in  which  extended  corre- 
spondence was  had  with  our  State  de- 
partment by  the  diplomatic  representa- 
tive of  the  foreign  governments  whose 
subjects  had  been  killed  or  injured  there 
were  demands  for  punishment,  and  there 
were  suggestions  that  the  promise  of  pro- 
tection was  made  by  the  United  States  in 
the  treaty  and  that  the  foreign  countries 
looked  to  the  United  States  and  not  to 
the  subordinate  States  for  compUance 
with  treaty  obligations. 

The  fifth  objection  was  that  our  secre- 
taries of  state,  in  their  correspondence 
with  complaining  foreign  representatives, 
have  uniformly  insisted  upon  the  com- 
[63] 


THE  UNITED  STATES  AND  PEACE 

mon-law  principle  that  the  punishment 
of  crime  must  be  left  to  the  ordinary  and 
orderly  administration  of  justice  by  the 
State  courts  in  like  manner  as  in  similar 
cases  affecting  our  own  citizens. 

Of  course  our  government  has  taken 
that  position.  The  secretaries  of  state 
found  themselves  in  such  a  position  that 
they  had  to.  It  is  not  to  be  expected 
that  they  would  have  made  prominent 
our  failure  to  legislate  when  we  might 
have  legislated  to  give  us  the  proper 
means  of  discharging  our  obligations. 

In  his  annual  message  of  December 
5,  1899,  President  McKinley  used  these 
words: 

For  the  fourth  time  in  the  present  decade 
question  has  arisen  with  the  Government  of 
Italy  in  regard  to  the  lynching  of  Italian 
subjects.  The  latest  of  these  deplorable 
events  occurred  at  Tallulah,  Louisiana, 
whereby  ^ve  unfortunates  of  Italian  origin 
were  taken  from  jail  and  hanged.  .  .  .  The 
recurrence  of  these  distressing  manifestations 

[64] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

of  blind  mob  fury  directed  at  dependents  or 
natives  of  a  foreign  country  suggests  that 
the  contingency  has  arisen  for  action  by  Con- 
gress in  the  direction  of  conferring  upon  the 
federal  courts  jurisdiction  in  this  class  of  in- 
ternational cases  where  the  ultimate  respon- 
sibility of  the  Federal  Government  may  be 
involved. 

And  he  refers  to  a  recommendation  of 
President  Harrison  made  in  this  matter 
in  1891,  just  after  the  Mafia  case,  in 
which  President  Harrison  said: 

It  would,  I  believe,  be  entirely  competent 
for  Congress  to  make  offenses  against  the 
treaty  rights  of  foreigners  domiciled  in  the 
United  States  cognizable  in  the  federal  courts. 
This  has  not,  however,  been  done,  and  the 
federal  officers  and  courts  have  no  power  in 
such  cases  to  intervene  either  for  the  pro- 
tection of  a  foreign  citizen  or  for  the  punish- 
ment of  his  slayers. 

President  McKinley  then  said: 

I  earnestly  recommend  that  the  subject  be 
taken  up  anew  and  acted  upon  during  the 
present  session.  The  necessity  for  some  such 
provision  abundantly  appears. 

[65] 


THE  UNITED  STATES  AND  PEACE 

In  his  message  of  1900  the  same  Presi- 
dent made  another  urgent  recommenda- 
tion of  the  same  kind. 

President  Roosevelt,  in  his  annual 
message  of  December,  1906,  in  dealing 
with  our  relations  with  Japan,  which 
were  then  of  much  public  concern,  said: 

One  of  the  great  embarrassments  attend- 
ing the  performance  of  our  international 
obligations  is  the  fact  that  the  statutes  of 
the  United  States  are  entirely  inadequate. 
They  fail  to  give  to  the  national  government 
sufficiently  ample  power,  through  United 
States  courts  and  by  the  use  of  the  army 
and  navy,  to  protect  aliens  in  the  rights  se- 
cured to  them  under  solemn  treaties  which 
are  the  law  of  the  land.  I,  therefore,  ear- 
nestly recommend  that  the  criminal  and  civil 
statutes  of  the  United  States  be  so  amended 
and  added  to  as  to  enable  the  President,  act- 
ing for  the  United  States  Government,  which 
is  responsible  in  our  international  relations, 
to  enforce  the  rights  of  ahens  under  treaties. 
There  should  be  no  particle  of  doubt  as  to 
the  power  of  the  national  government  com- 
pletely to  perform  and  enforce  its  own  obhga- 
tions  to  other  nations.     The  mob  of  a  single 

[66] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

city  may  at  any  time  perform  acts  of  law- 
less violence  against  some  class  of  foreigners 
which  would  plunge  us  into  war.  That  city 
by  itself  would  be  powerless  to  make  defense 
against  the  foreign  power  thus  assaulted,  and 
if  independent  of  this  government  it  would 
never  venture  to  perform  or  permit  the  per- 
formance of  the  acts  complained  of.  The 
entire  power  and  the  whole  duty  to  protect 
the  offending  city  or  the  offending  commu- 
nity lies  in  the  hands  of  the  United  States 
Government.  It  is  unthinkable  that  we 
should  continue  a  policy  under  which  a  given 
locality  may  be  allowed  to  commit  a  crime 
against  a  friendly  nation,  and  the  United 
States  Government  limited,  not  to  preventing 
the  commission  of  the  crime,  but,  in  the  last 
resort,  to  defending  the  people  who  have 
committed  it  against  the  consequences  of 
their  own  wrong-doing. 

And  in  my  Inaugural  address,  March 
4,  1909,  I  brought  the  subject  to  the  at- 
tention of  Congress  as  strongly  as  I  could, 
as  follows: 

By  proper  legislation  we  may,  and  ought 
to,  place  in  the  hands  of  the  federal  execu- 
tive the  means  of  enforcing  the  treaty  rights 

[67] 


THE  UNITED  STATES  AND  PEACE 

of  such  aliens  in  the  courts  of  the  Federal  Gov- 
ernment. It  puts  our  government  in  a  pu- 
sillanimous position  to  make  definite  engage- 
ments to  protect  aliens  and  then  to  excuse 
the  failure  to  perform  those  engagements  by 
an  explanation  that  the  duty  to  keep  them 
is  in  States  or  cities,  not  within  our  control. 
If  we  would  promise  we  must  put  ourselves 
in  a  position  to  perform  our  promise.  We 
cannot  permit  the  possible  failure  of  justice, 
due  to  local  prejudice  in  any  State  or  mu- 
nicipal government,  to  expose  us  to  the  risk 
of  a  war  which  might  be  avoided  if  Federal 
jurisdiction  was  asserted  by  suitable  legisla- 
tion by  Congress  and  carried  out  by  proper 
proceedings  instituted  by  the  executive  in 
the  courts  of  the  national  government. 

These  citations  would  seem  to  refute 
any  suggestion  that  those  having  oflBicial 
responsibility  for  our  foreign  relations 
have  not  realized  the  crying  need  for 
such  legislation. 

The  committee's  sixth  objection  was 
that  upon  this  basis  all  complaints  aris- 
ing out  of  such  cases  have  been  settled 
through  the  ordinary  diplomatic  chan- 
[68] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

nels  and  without  any  loss  of  self-respect 
to  our  government 

That  is  a  matter  of  opinion.  If  one 
can  judge  from  the  communications  from 
some  of  the  secretaries  of  state  to  Con- 
gress and  the  messages  of  the  Presidents 
just  quoted,  they  feel  very  deeply  the 
loss  of  self-respect  that  their  enforced 
attitude  and  their  inability  to  take  ac- 
tion involves.  Indeed,  it  is  impossible 
to  explain  the  payment  by  the  Con- 
gress of  the  United  States,  on  the  rec- 
ommendation by  the  executive,  of  an 
indemnity  in  every  case  of  these  interna- 
tional outrages,  unless  there  has  been  a 
real  feeling  on  the  part  of  the  authorities 
of  this  government  that  we  are  at  fault 
and  that  we  intend  to  do  something  to 
save,  as  much  as  possible,  the  blame  that 
is  properly  chargeable  to  us  and  our  gov- 
ernment. The  position  of  the  govern- 
ment usually  is  that  we  do  not  owe  any- 
thing as  a  matter  of  right.  If  so,  and 
[69] 


THE  UNITED  STATES  AND  PEACE 

if  it  is  sound  doctrine  that  we  must  treat 
equally  the  citizens  of  our  own  country 
and  citizens  of  a  foreign  country,  why 
should  we  discriminate  and  pay  an  in- 
demnity to  the  foreign  citizens  or  sub- 
jects who  were  injured  or  killed  and  not 
pay  a  similar  indemnity  in  cases  of  lynch- 
ings  of  our  own  citizens?  Our  position 
and  our  action  are  not  consistent  and  the 
reason  why  they  are  not  consistent  is  be- 
cause we  have  made  the  promise  and  are 
not  in  a  position  to  perform  it,  and  there- 
fore we  do  the  next  best  thing  and  try  to 
salve  the  wounds  of  our  sister  nations  by 
money  payments. 

The  committee's  seventh  objection  was 
that  the  method  of  dealing  with  such 
cases  in  England,  the  other  great  com- 
mon-law country,  is  precisely  analogous 
to  our  own. 

This  is  inaccurate  because  in  England 
the  initiation  of  the  administration  of 
justice,  the  detection  of  criminals,  and 
[70] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

the  control  of  their  prosecution  is  with 
the  law  officers  of  the  crown. 

Then  the  learned  committeemen  went 
into  a  consideration  of  the  possible  anom- 
alies that  would  arise  were  felonious  as- 
saults upon  foreign  subjects  or  citizens 
made  a  federal  offence.  It  was  said  that 
it  might  involve  double  jeopardy.  Well, 
there  are  a  great  many  instances  in  which 
just  such  double  jeopardy,  if  it  can  be 
called  such,  occurs  in  respect  of  acts  that 
constitute  an  offence  against  both  State 
and  Federal  sovereignties.  In  view  of  the 
fact  that  such  offences  are  never  brought 
to  trial  in  a  State,  much  less  to  conviction, 
the  practical  danger  of  double  jeopardy, 
if  it  be  such,  is  most  remote. 

Then  it  is  said  that  it  will  produce 
great  confusion  because  there  are  so  many 
aliens  in  this  country  that  the  assaults 
upon  whom  would  crowd  the  Federal 
courts  and  introduce  a  deplorable  delay. 

Even  if  there  were  some  delay  in  fi- 
[71] 


THE  UNITED  STATES  AND  PEACE 

nally  disposing  of  such  cases,  their  ener- 
getic initiation  is  much  to  be  preferred  to 
that  kind  of  despatch  of  the  business  in 
State  courts  which  results  in  a  report  of 
the  coroner  and  grand  jury  that  the  perpe- 
trators are  unknown.  Nor  is  it  true  that 
such  cases  would  clog  the  Federal  courts. 
Those  courts  can  take  care  of  many  more 
criminal  cases  to-day  than  in  1891,  and 
the  discretion  of  the  attorney-general  or 
the  prosecuting  oflScer  of  the  Federal  Gov- 
ernment can  well  be  trusted  to  leave  to 
the  jurisdiction  of  the  State  courts  those 
crimes  of  violence  against  aliens  that  are 
in  ordinary  course  and  do  not  really  in- 
volve race  or  national  feehng  or  interna- 
tional complications.  There  are  many 
classes  of  offences  cognizable  in  both  Fed- 
eral and  State  jurisdictions  in  which  such 
comity  of  arrangement  exists  and  is  sat- 
isfactory in  its  operation. 

But  it  is  suggested  that  in  some  way 
or  other  we  are  putting  the  foreigners 
[  n  1 


ALIENS  AND  THEIR  TREATY  RIGHTS 

into  a  privileged  class  by  providing  for 
their  protection  by  the  United  States 
courts  and  United  States  officers.  Don't 
we  do  so  by  paying  indemnities?  But, 
more  than  this,  the  suggestion  is  be- 
side the  mark.  Criminals  have  no  vested 
rights  to  trial  in  a  jurisdiction  where  con- 
viction is  impossible,  or  to  object  to  a 
jurisdiction  which  is  likely  to  convict 
them  when  they  assault  those  whom  the 
pUghted  hospitality  of  the  nation  ought 
to  protect.  We  are  not  putting  the  vic- 
tims in  a  privileged  class  solely  or  chiefly 
for  the  purpose  of  giving  them  any  bene- 
fit, but  rather  for  the  purpose  of  protect- 
ing the  Federal  Government  from  just 
complaint  by  a  sister  nation  and  from 
being  possibly  involved  in  war  by  the 
lawlessness  and  selfishness  of  local  com- 
munities. 

The  reasons  of  legislative  policy  ad- 
vanced by  the  committee  against  the  bill 
were  thus,  in  the  highest  degree,  techni- 
[73] 


THE  UNITED  STATES  AND  PEACE 

cal  and  entirely  without  weight,  and  the 
lamentable  occurrences  since  their  report 
emphasize  their  error. 

Finally,  the  committee  intimated  that 
such  legislation  as  proposed  would  be  in 
violation  of  the  Constitution.  They  do  not 
argue  this  out.  They  only  suggest  that  it 
would  be  an  invasion  of  the  police  power  of 
the  States,  and  they  assume  a  construction 
of  the  Constitution  that  would  have  done 
in  the  days  of  Chief  Justice  Taney  and  the 
strict  construction  period  of  the  Supreme 
Court  before  the  war.  They  ignore  a 
specific  declaration  by  the  Supreme 
Court  that  such  legislation  would  be 
valid  and  a  long  series  of  cases  by  that 
tribunal  which  by  analogy  leave  not  the 
slightest  doubt  of  the  power  of  the  gov- 
ernment not  only  to  assume  such  judi- 
cial jurisdiction  after  the  ofifence,  but 
also  to  take  preventive  executive  mea- 
sures before  the  ofifence  to  stop  such  out- 
rages. 

[74] 


r 


ALIENS  AND  THEIR  TREATY  RIGHTS 

The  bill  proposed  to  give  jurisdiction 
of  such  cases  to  the  federal  courts  is  as 
follows: 

Be  it  enacted  by  the  Senate  and  House 
of  Representatives  of  the  United  States  of 
America,  in  Congress  assembled,  that  any 
act  committed  in  any  state  or  territory  of 
the  United  States  in  violation  of  the  rights 
of  a  citizen  or  subject  of  a  foreign  country 
secured  to  such  citizen  or  subject  by  treaty 
between  the  United  States  and  such  foreign 
country,  which  act  constitutes  a  crime  under 
the  laws  of  such  state  or  territory,  shall 
constitute  a  like  crime  against  the  peace  and 
dignity  of  the  United  States,  punishable  in 
like  manner  as  in  the  courts  of  said  state  or 
territory,  and  within  the  period  limited  by 
the  laws  of  such  state  or  territory,  and  may 
be  prosecuted  in  the  courts  of  the  United 
States,  and,  upon  conviction,  the  sentence 
executed  in  like  manner  as  sentences  upon 
convictions  for  crimes  under  the  laws  of  the 
United  States. 

The  question  of  the  validity  of  this 
proposed  legislation  under  the  Consti- 
tution involves  a  consideration  of  the 
treaty-making    power    of    the    Federal 

[75] 


THE  UNITED  STATES  AND  PEACE 

Government  and  the  powers  necessarily 
resultant  from  that  and  incident  to  it. 

The  treaty-making  power  of  the  United 
States  is  the  widest  power  that  it  has. 
The  executive  power  in  our  domestic 
field  of  government  is  divided  between 
the  general  government  and  the  State 
governments,  between  the  President  and 
other  executive  oflacers  of  the  United 
States,  on  the  one  hand,  and  State  gov- 
ernors and  other  executive  officers  of  the 
States  on  the  other.  The  legislative  pow- 
er is  divided  between  Congress  and  the 
legislatures  of  the  States.  The  judicial 
power  is  divided  between  the  Federal 
courts  that  exercise  the  jurisdiction  ex- 
tended to  them  by  the  Federal  Constitu- 
tion and  laws  and  the  courts  of  the  States. 
But  all  governmental  power  exercised  by 
the  country  in  dealing  with  foreign  gov- 
ernments is  exercised  by  the  Federal  Gov- 
ernment alone,  and  the  only  limitation 
upon  that  power  is  that  in  treaty  making 
[76] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

the  President  and  the  Senate  shall  not 
violate  any  prohibition  of  the  Constitu- 
tion and  shall  exercise  that  power  within 
the  hmits  which  international  practice 
normally  imposes  as  to  the  subjects  to 
be  included  in  a  treaty.  This  wide  and 
exclusive  power  of  the  central  govern- 
ment in  treaty  making  is  easily  to  be 
inferred  from  the  fact  that  by  the  Con- 
stitution the  States  are  expressly  forbid- 
den to  enter  into  any  treaty,  alHance,  or 
confederation,  to  grant  letters  of  marque 
and  reprisal,  unless  Congress  consents, 
to  lay  any  duty  of  tonnage,  to  keep 
troops  or  ships  of  war,  in  time  of  peace, 
to  enter  into  any  agreement  or  com- 
pact with  another  State  or  with  a  for- 
eign power,  or  to  engage  in  war  unless 
invaded;  while  the  general  government 
is  expressly  empowered  to  make  trea- 
ties, to  regulate  commerce  with  foreign 
nations,  to  establish  a  uniform  rule  of 
naturalization,  to  define  and  punish  pira- 
[77] 


THE  UNITED  STATES  AND  PEACE 

cies  and  felonies  committed  on  the  high 
seas,  and  offences  against  the  law  of 
nations,  to  declare  war,  grant  letters  of 
marque  and  reprisal,  and  make  rules  con- 
cerning captures  on  land  or  water,  to 
raise  and  support  armies,  to  provide  and 
maintain  a  navy,  to  make  rules  for  the 
government  and  regulation  of  the  land 
and  naval  forces,  to  provide  for  the  call- 
ing forth  the  militia  to  repel  invasions, 
to  appoint  ambassadors  and  other  pub- 
lic ministers  and  consuls,  and  to  adjudi- 
cate causes  arising  under  treaties  and  all 
cases  affecting  ambassadors,  other  public 
ministers,  and  consuls,  causes  of  admi- 
ralty and  maritime  jurisdiction,  and  cases 
between  a  State  or  the  citizens  thereof, 
and  foreign  states,  citizens,  and  subjects. 
And,  further  than  this,  the  treaties  made 
by  the  authority  of  the  United  States  are 
expressly  declared  to  be  the  supreme  law 
of  the  land  and  the  judges  in  every  State 
are  to  be  bound  thereby,  anything  in  the 
[78] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

Constitution  or  the  laws  of  any  State  to 
the  contrary  notwithstanding. 

It  would  be  difficult  to  make  clearer 
the  intention  of  the  framers  of  the  Con- 
stitution and  the  people  who  ratified  it 
to  give  over  to  the  general  government  the 
executive  power  to  control  foreign  affairs 
and  to  give  to  the  treaty-making  power 
as  wide  a  scope  as  treaties  between  in- 
dependent governments  are  wont  to  have. 
As  already  said,  one  of  the  most  com- 
mon provisions  in  treaties  between  civi- 
lized countries  is  that  which  reciprocally 
binds  each  of  the  parties  to  give  an  op- 
portunity for  peaceful  residence  and  pur- 
suit of  business  in  its  territory  to  the  citi- 
zens or  subjects  of  the  other. 

Unlike  treaties  in  most  countries,  a 
treaty  made  by  the  United  States  has  a 
double  aspect.  It  is  not  only  a  contract 
between  the  two  countries,  as  it  is  in 
England  and  in  other  jurisdictions.  It 
is  that  and  more,  because  in  so  far  as  its 
[79] 


THE  UNITED  STATES  AND  PEACE 

provisions  in  their  nature  can  have  oper- 
ation in  the  United  States  as  municipal 
law,  they  are  statutes.  They  are  equiv- 
alent to  a  law  passed  by  Congress,  and  as 
such  they  repeal  a  previous  inconsistent 
law  of  Congress,  on  the  one  hand,  and 
can  be  repealed  by  a  subsequent  incon- 
sistent law  of  Congress  on  the  other.  It 
follows,  therefore,  that  ahens  living  in 
this  country,  whose  sovereign  has  made 
a  treaty  with  the  United  States  in  which 
the  United  States  guarantees  protection 
to  life  and  property  to  such  aliens  during 
their  residence  within  the  jurisdiction  of 
the  United  States,  have  a  right  under  the 
federal  Constitution  and  law  to  be  secure 
against  any  invasion  of  their  peaceable 
residence  and  the  holding  of  property. 
Under  the  eighteenth  clause  of  Section 
VIII  of  Article  I  of  the  Constitution, 
Congress  has  power  to  make  all  laws 
which  shall  be  necessary  and  proper  for 
carrying  into  execution  all  powers  vested 
[80] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

by  this  Constitution  in  the  government 
of  the  United  States.  It  needs  no  strain- 
ing of  logic,  but  only  the  use  of  the  rea- 
soning pursued  by  the  Supreme  Court  in 
hundreds  of  similar  cases,  to  deduce  the 
power  of  Congress  under  that  clause  to 
enact  legislation  to  carry  out  and  execute 
such  an  agreement  by  the  United  States 
to  protect  aliens  from  lawless  violence. 
Therefore,  it  would  be  entirely  compe- 
tent for  Congress  to  pass  the  bill  I  have 
quoted  above. 

Now,  if  the  committee  of  the  Bar  Asso- 
ciation, to  which  I  have  referred,  had  not 
expressed  some  doubts  as  to  the  power 
of  Congress  to  pass  such  a  law,  I  would 
not  have  thought  it  necessary  to  argue 
it.  The  power  has  been  expressly  af- 
firmed by  the  Supreme  Court.  The  case 
of  Baldwin  vs.  Franks,  120  U.  S.  678, 
involved  the  punishment  of  a  man  for 
using  lawless  violence  against  Chinese 
aliens  resident  in  California,  driving  them 
[81] 


THE  UNITED  STATES  AND  PEACE 

from  their  residence  and  depriving  them 
of  their  legitimate  business,  contrary  to 
a  treaty  made  between  the  United  States 
and  China  in  1881. 

The  Supreme  Court  said: 

That  the  treaty-making  power  has  been 
surrendered  by  the  States  and  given  to  the 
United  States  is  unquestionable.  It  is  true, 
also,  that  the  treaties  made  by  the  United 
States  and  in  force  are  part  of  the  supreme 
law  of  the  land,  and  that  they  are  as  binding 
within  the  territorial  limits  of  the  States  as 
they  are  elsewhere  throughout  the  dominion 
of  the  United  States. 

The  court  then  recites  the  clause  of 
the  treaty  and  continues: 

That  the  United  States  have  power  under 
the  Constitution  to  provide  for  the  punish- 
ment of  those  who  are  guilty  of  depriving 
Chinese  subjects  of  any  of  the  rights,  privi- 
leges, immunities,  or  exemptions  guaranteed 
to  them  by  this  treaty,  we  do  not  doubt. 
What  we  have  to  decide,  under  the  questions 
certified  here  from  the  court  below,  is  whether 
this  has  been  done  by  the  sections  of  the  re- 
vised statutes  specially  referred  to. 

[82] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

But  they  found  no  law  on  the  statute 
book  with  language  which  embraced  such 
offences. 

This  decision  was  rendered  in  1887 
and  the  report  of  the  Bar  Association 
committee  was  in  1891,  and  the  report, 
so  far  as  I  can  find,  does  not  mention 
the  decision  of  the  court  in  Baldwin  vs. 
Franks.  As  the  committee  of  the  Bar 
Association  had  no  jurisdiction  to  reverse 
the  views  of  the  Supreme  Court,  I  assume 
that  we  can  treat  the  constitutional  con- 
struction declared  by  the  Supreme  Court 
as  still  in  force. 

But  such  punishment  of  crime  in  the 
federal  courts  and  by  the  authority  of 
the  United  States  against  those  who  vio- 
late the  treaty  rights  of  aliens  is  not  the 
only  thing  that  can  be  done.  One  of  the 
ideas  that  it  took  a  long  time  to  get  into 
the  heads  of  strict  constructionists  of 
the  Constitution  was  that  there  is  not 
only  the  peace  of  a  State,  but  there  is 
[83] 


THE  UNITED  STATES  AND  PEACE 

also,  on  the  same  soil,  the  peace  of  the 
United  States;  that  while  the  breach  of 
State  law  by  violence  is  a  breach  of  the 
peace  of  the  State,  breach  of  Federal  law 
by  violence  is  a  breach  of  the  peace  of 
the  United  States. 

In  the  case  of  Ex  Parte  Siebold,  100 
U.  S.  371-394,  the  court  was  considering 
an  objection,  very  similar  to  the  one  made 
here,  against  a  law  providing  for  the  pro- 
tection of  a  citizen  of  a  State  in  his  rights 
under  the  Federal  Constitution  against 
assault.     They  said: 

It  is  argued  that  the  preservation  of  peace 
and  good  order  in  society  is  not  within  the 
powers  confided  to  the  government  of  the 
United  States,  but  belongs  exclusively  to 
the  States.  Here  again  we  are  met  with  the 
theory  that  the  government  of  the  United 
States  does  not  rest  upon  the  soil  and  ter- 
ritory of  the  country.  We  think  that  this 
theory  is  founded  on  an  entire  misconception 
of  the  nature  and  powers  of  that  govern- 
ment. We  hold  it  to  be  an  incontrovertible 
principle  that  the  government  of  the  United 
States  may,  by  means  of  physical  force,  exer- 

[84] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

cised  through  its  official  agents,  execute  on 
every  foot  of  American  soil  the  powers  and 
functions  that  belong  to  it.  This  necessa- 
rily involves  the  power  to  command  obedi- 
ence to  its  law,  and  hence  the  power  to  keep 
the  peace  to  that  extent. 

In  the  Debs  case,  reported  in  158  U.  S. 
564,  Mr.  Justice  Brewer  said: 

The  entire  strength  of  the  nation  may  be 
used  to  enforce  in  any  part  of  the  land  the 
full  and  free  exercise  of  all  national  powers 
and  the  security  of  all  rights  entrusted  by 
the  Constitution  to  its  care.  ...  If  the 
emergency  arises,  the  army  of  the  nation, 
and  all  its  militia,  are  at  the  service  of  the 
nation  to  compel  obedience  to  its  laws. 

This  language  has  exact  application  to 
the  protection  of  the  treaty  rights  of 
aliens.  Therefore,  not  only  ought  the 
bill  to  be  passed  which  I  have  read  above, 
providing  for  a  punishment  of  lawless 
violence  directed  against  the  rights  and 
welfare  of  aliens  guaranteed  in  a  treaty 
of  the  United  States,  but  express  statu- 
tory provision  ought  also  to  be  made  en- 
[85] 


THE  UNITED  STATES  AND  PEACE 

abling  the  President,  in  his  discretion,  to 
act  directly,  and  without  reference  to 
State  action,  in  protection  of  such  aliens 
when  their  safety  and  peaceable  residence 
are  threatened.  Such  executive  power 
would  doubtless  be  implied  if  Federal 
court  jurisdiction  were  given,  but  it 
would  be  greatly  better  to  make  it  ex- 
press. Then  the  President  could  move  at 
once  to  the  protection  of  aliens  living  in 
settlements  where  mobs  threaten  attack, 
and  practical  results  might  be  expected, 
making  the  protection  of  the  United  States 
a  real  thing.  Then  the  secretary  of  state 
could  look  in  the  face  the  ambassador  of 
the  country  whose  subjects  or  citizens  are 
threatened  with  a  gross  violation  of  their 
treaty  rights,  and  point  to  the  effective 
measures  of  protection  taken  to  vindi- 
cate the  honor  and  the  plighted  faith  of 
the  United  States. 

Now,  if  such  legislation  is  so  plainly 
needed,  why  has  it  not  been  enacted  .^^ 
[86] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

This  is  a  hard  question  for  me  to  answer 
except  by  suggesting  that  aUens  are  not 
voters  and  their  rights  are  not  a  poht- 
ical  issue.  Both  parties  are  at  fault  in 
this  matter.  When  I  was  President,  as 
quoted  above,  I  urged  the  adoption  of 
such  legislation,  and  then  took  such  steps 
as  I  could  in  other  ways  to  secure  its  en- 
actment. At  my  suggestion,  Mr.  Swagar 
Sherley,  a  leading  Democratic  member  of 
the  House,  from  Louisville,  Kentucky, 
attempted  to  introduce  such  legislation 
into  the  revision  of  the  judicial  code,  but 
objection  was  made  on  the  ground  that 
it  would  introduce  new  legislation  into  a 
code  that  should  be  only  a  revision  of 
existing  legislation.  The  separate  bill  for 
the  purpose  which  was  introduced,  I 
could  not,  in  the  pressure  of  other  legis- 
lation, induce  either  House  to  take  up. 
There  seemed  to  be  the  strong  opposi- 
tion not  only  of  Democrats  from  the 
South  but  of  Republicans  from  the  far 
[87] 


THE  UNITED  STATES  AND  PEACE 

West,  and  this  prevented  its  consider- 
ation. 

May  we,  therefore,  not  ask  from  this 
administration,  in  the  course  of  which 
there  has  been  exhibited,  under  the  ad- 
mirable leadership  of  the  President,  such 
wonderful  party  discipline  in  the  pas- 
sage of  legislation,  that  action  be  taken  on 
this  important  matter?  The  negotiations 
with  Japan  would,  I  am  sure,  be  greatly 
assisted  by  giving  such  an  earnest  of  the 
sincerity  of  our  government  in  protecting 
her  people  in  the  rights  we  assure  them. 
If  it  be  said  that  the  party  in  power 
is  traditionally  opposed  to  giving  the 
Federal  Government  more  functions  and 
to  concentration  of  power  in  Washing- 
ton, we  may  well  urge  that  when  the 
party  in  power  has  swallowed  camels  in 
the  passage  of  a  law  giving  the  largest 
government  control  of  banking  and  cur- 
rency known  in  our  history,  and  in  pro- 
jecting a  law  vesting  the  widest  Federal 
[88] 


ALIENS  AND  THEIR  TREATY  RIGHTS 

power  in  respect  to  corporations  doing  f 
interstate  business,  and  another  looking  j 
to  Federal  regulation  of  presidential  pri-/ 
maries,  the  party  leaders  should  not  strain  f 
at  the  gnat  of  Federal  performance  of^ 
Federal  promises,  even  if  it  may  involve 
the  transfer  to  the  jurisdiction  of  Federal  ( 
courts  of  a  comparatively  few  cases  which 
are  now  in  theory  triable  in  State  courts  / 
but  in  fact  are  never  tried  there. 


89  ] 


CHAPTER  III 

ARBITRATION  TREATIES  THAT 
MEAN  SOMETHING 

The  war  between  Italy  and  Tripoli,  the 
war  in  China,  the  war  between  the  Bal- 
kan States  and  Turkey  and  then  the  sub- 
sequent war  between  the  Balkan  States 
themselves,  the  war  in  Haiti,  and  finally 
the  war  in  Mexico,  all  are  contemporary 
and  convincing  evidence  that  the  dawn 
of  universal  peace  is  not  immediately  at 
hand.  It  is  true  that  these  are  nearly 
all  of  them  civil  wars  or  revolutions, 
and  that  the  restoration  of  peace  in 
most  of  them  requires  only  the  estab- 
Ushment  of  stable  governments.  It  is 
very  certain  that  in  such  cases,  treaties 
of  arbitration,  whatever  their  terms  and 
[  90  ] 


ARBITRATION  TREATIES 

however  solemnly  entered  into,  are  not 
a  practical  means  of  settlement.  Many 
countries  in  the  last  century  suffered  from 
the  disease  of  revolution.  Looking  back 
over  half  a  century,  we  can  properly  say 
that  in  the  countries  subject  to  such  out- 
breaks there  has  been  great  improvement; 
and,  while  Mexico  shows  retrogression  in 
this  regard,  most  of  the  South  American 
countries  have  grown  stronger  in  the 
maintenance  of  law  and  order  and  the 
preservation  of  constituted  authority. 

I  think  it  is  our  duty,  as  a  great,  strong, 
powerful  nation,  when  we  can  easily  do 
so  without  involving  ourselves  in  costly 
or  dangerous  war,  to  promote  the  cause 
of  peace  and  order  in  any  of  our  less 
stable  neighbors  through  treaty  arrange- 
ments with  them,  and  this  wholly  with- 
out regard  to  the  Monroe  Doctrine.  We 
have  had  such  an  opportunity  with  Nic- 
aragua, with  Honduras,  with  Santo  Do- 
mingo, and  we  may  possibly  have  the 
[91] 


THE  UNITED  STATES  AND  PEACE 

same  kind  of  an  opportunity  with  other 
states  similarly  conditioned.  They  all 
owe  what  to  them  is  a  large  amount 
of  money  to  European  creditors.  Their 
creditors  are  willing  to  scale  down  the 
debts,  which  in  justice  ought  to  be  sub- 
stantially scaled,  if  they  can  be  given 
greater  security.  The  governments  of 
these  countries,  confident  that  we  are 
disinterested  in  the  matter,  have  mani- 
fested a  desire  to  have  American  bankers 
finance  the  readjustment  of  their  obliga- 
tions if  our  government  will  only  consent 
to  a  treaty  in  which  there  is  reserved  to 
us  the  right  to  nominate  collectors  of 
their  customs  revenues  and  to  protect 
such  collectors  against  lawless  violence. 
The  amount  of  force  necessary  to  ex- 
tend this  protection  is  almost  negligible. 
Indeed,  it  is  not  more  than  the  show 
of  force  that  we  usually  make  to  protect 
American  interests  in  the  breaking  out  of 
a  revolution  in  these  countries.  I  never 
[  92  ] 


ARBITRATION  TREATIES 

have  been  able  to  understand  the  argu- 
ment against  such  treaties.  They  do  not 
involve  the  Monroe  Doctrine  at  all.  They 
merely  involve  the  obligation  of  a  strong 
and  powerful  neighbor  to  help  a  weak 
one.  They  are  in  the  interest  of  peace 
and  good  order  and  make  for  the  just 
settlement  of  debts.  In  some  way  or 
other,  such  treaties  are  supposed  to  be 
a  recognition  of  the  right  of  European 
governments  to  collect  the  debts  of  their 
nationals  by  force;  but  I  am  unable 
to  see  why.  They  constitute  merely 
a  friendly  act,  and  furnish  a  means  to 
these  governments  of  settling  their  past 
obligations  and  obtaining  a  much-needed 
sum  of  money  to  be  expended  in  helping 
their  people  in  education  and  in  the  de- 
velopment of  their  rich  natural  resources. 
In  Central  America  the  difficulty  has 
been  that  a  dictator  in  one  republic  has 
intrigued  against  his  neighbors.  He  be- 
came a  disturbing  factor  for^all  the  rest. 
[93] 


THE  UNITED  STATES  AND  PEACE 

The  treaties  with  Honduras  and  Nica- 
ragua would  give  the  United  States  an 
opportunity  to  exert  a  direct  influence 
to  prevent  the  consummation  of  such  in- 
trigues and  to  maintain  a  peace  in  that 
region  of  North  America  essential  to  the 
happiness  of  its  people.  Their  trade  is 
naturally  of  great  value  to  us,  and  would 
be  of  much  greater  value  if  the  arts  of 
peace  were  pursued. 

But  the  subject  of  this  chapter  is  not 
that  of  specific  treaties.  It  is  the  ques- 
tion of  the  relation  of  the  Senate  to  gen- 
eral arbitration  treaties.  I  understand 
a  general  arbitration  treaty  to  mean  a 
treaty  by  which  the  nations  who  are 
parties  to  it  agree  that  they  will  in  the 
future  submit  to  arbitration  all  future 
differences  which  come  within  a  class 
of  issues  defined  in  the  treaty.  What  I 
propose  to  discuss  here  is  whether  the 
President  and  the  Senate  have  the  power 
to  make  such  treaties  in  a  form  that  will 
[  94  ] 


ARBITRATION  TREATIES 

really  bind  them  and  the  government  to 
anything  substantial. 

In  Mr.  Roosevelt's  term  there  were  a 
number  of  arbitration  treaties  negotiated 
and  signed  by  Mr.  Hay  and  submitted 
to  the  Senate,  in  which  it  was  agreed 
between  the  United  States  and  the  other 
treaty-making  party  that  all  questions 
of  a  legal  nature,  not  including  those  of 
national  honor  or  vital  interest,  would  be 
submitted  to  The  Hague  tribunal,  and 
that  when  any  difference  arose  a  spe- 
cific agreement  of  submission  of  the  issue 
would  be  entered  into.  The  Senate  in- 
sisted that  for  the  words  "specific  agree- 
ment," "treaty"  should  be  substituted, 
in  order  that  no  specific  agreement  could 
be  submitted  under  the  treaty  except 
with  the  advice  and  consent  of  the  Sen- 
ate. Mr.  Roosevelt  declined  to  ratify 
treaties  with  this  limitation,  on  the  ground 
that  the  treaty  thus  limited  did  not  bring 
the  country  any  nearer  to  arbitration 
[95] 


THE  UNITED  STATES  AND  PEACE. 

than  if  no  treaty  was  made.  On  the 
other  hand,  the  Senate  insisted  that  it 
had  no  power  to  ratify  such  a  treaty 
because  it  would  be  an  unlawful  delega- 
tion to  the  President  alone  of  the  treaty- 
making  power. 

The  treaties  thus  drawn  either  at- 
tempted to  describe  a  class  of  questions 
which  the  government  bound  itself  to 
arbitrate  or  they  did  not.  If  not,  then 
they  were  not  treaties  at  all,  and  there 
was  no  occasion  to  discuss  what  the 
Constitution  required  with  reference  to 
treaties.  In  that  view  they  were  a  mere 
general  declaratory  expression  of  a  hope 
that  the  parties  might  make  a  treaty  in 
the  future.  If,  however,  the  treaties  did 
define  a  class  of  issues  which  the  United 
States  agreed  to  arbitrate,  then  whether 
an  issue  thereafter  arising  came  within 
the  class  or  not  was  a  matter  of  construc- 
tion of  the  treaty.  The  agreement  would 
then  be  nothing  more  than  the  framing 
[96] 


ARBITRATION  TREATIES 

of  the  specific  issue  which  came  within 
the  general  class  as  defined.  It  is  a  well- 
understood  incident  of  the  treaty-making 
power  that  in  a  treaty  there  may  be  re- 
served, without  an  unlawful  delegation 
of  power,  to  the  President,  or  to  some 
other  agent,  the  power  to  execute  its 
provisions.  As  the  Supreme  Court  said 
in  Tong  Yue  Ting  vs.  the  United  States, 
149  U.  S.  698  and  714: 

It  is  no  new  thing  for  the  law-making 
power,  acting  either  through  treaties  made 
by  the  President  and  the  Senate,  or  by  the 
more  common  methods  of  the  acts  of  Con- 
gress, to  submit  the  decision  of  questions  not 
necessarily  of  judicial  cognizance  either  to 
the  final  determination  of  executive  oflScers, 
or  to  the  decisions  of  such  officers  in  the 
first  instance,  with  such  opportunity  for  ju- 
dicial review  of  their  action  as  Congress  may 
see  fit  to  authorize  and  permit. 

It  was,  therefore,  entirely  within  the 

authority  of  the    treaty-making  power, 

after  having  laid  down  a  general  rule 

of  jurisdiction  fixing  a  definite  class  of 

[97] 


THE  UNITED  STATES  AND  PEACE 

questions  which  might  be  arbitrated  be- 
fore the  stipulated  court,  to  leave  the 
formulation  of  the  specific  issue  coming 
within  that  class  for  the  executive. 

The  police  power  of  Congress  to  regu- 
late the  rates  on  interstate  commerce 
railroads  is  exercised  by  laying  down 
some  very  general  rules  that  rates  shall 
be  reasonable,  and  shall  not  be  unduly 
discriminatory,  and  by  then  giving  to 
the  Interstate  Commerce  Commission 
the  power  under  those  general  rules  to 
decide  what  rates  are  unreasonable  or 
discriminatory,  and  indeed  to  fix  rates 
themselves. 

In  the  argument  by  senators  against 
the  power  of  the  Senate  to  agree  that 
the  President  alone  might  formulate  the 
specific  agreement,  much  reliance  was 
placed  on  the  decision  of  the  Supreme 
Court  in  Field  against  Clark,  145  U.  S. 
In  that  case  the  Supreme  Court  merely 
laid  down  the  general  rule  that  Congress 
[98] 


ARBITRATION  TREATIES 

could  not  delegate  legislative  power,  and 
then  held  valid  a  provision  in  the  Mc- 
Kinley  tariff  act  which  authorized  the 
President  to  apply  one  or  another  set  of 
duties  to  the  imports  from  a  foreign 
country  as  he  decided  whether  the  cus- 
toms laws  of  that  country  were  "recip- 
rocally unreasonable"  toward  us.  The 
case,  instead  of  helping  the  contention  of 
the  Senate,  made  strongly  for  the  view 
that  giving  the  President  the  power  to 
make  the  specific  agreement  was  not  an 
unlawful  delegation. 

The  Hay  treaties  of  general  arbitration, 
as  I  have  said,  excepted  from  the  issues 
of  a  legal  nature  to  be  arbitrated  '^  ques- 
tions of  national  honor  and  vital  inter- 
est." Who  could  tell  what  were  not 
questions  within  these  exceptions?  It 
left  a  discretion  in  each  party  to  insist 
that  any  question  concerned  its  honor  or 
vital  interest.  Lord  Russell,  when  first 
approached  as  to  the  possibility  of  arbi- 
[99] 


THE  UNITED  STATES  AND  PEACE 

trating  the  issue  growing  out  of  the  Ala- 
bama claims  and  the  mulcting  of  Great 
Britain  for  her  failure  to  perform  her 
international  duties,  said  that  she  could 
not  admit  that  she  had  ever  failed  in 
that  regard,  and  that  it  was  a  question 
of  national  honor  which  she  would  not 
submit  to  arbitration.  And  yet  she  did, 
and  not  only  did  she  submit  it  to  arbitra- 
tion, but  she  paid  the  judgment  of  $15,- 
500,000  rendered  against  her  by  an  in- 
ternational tribunal. 

The  exceptions  of  the  Hay  treaties  were 
so  broad  and  general  that  the  action 
of  the  Senate  in  declining  to  allow  the 
President  to  make  the  specific  agree- 
ment under  them  could  be  strongly  de- 
fended on  the  ground  that  the  treaties 
did  not  suflBiciently  define  any  class  of 
questions  and  therefore  that  the  specific 
agreement  would  be  the  only  real  treaty. 

A  treaty  of  arbitration  is  for  the  pur- 
pose not  only  of  settHng  disputes,  but 
[  100] 


AEBITRATION  TREATIES 

its  main  function  is  to  prevent  those 
disputes  from  resulting  in  war.  A  coun- 
try is  not  likely  to  go  to  war  except  on 
an  issue  that  involves  its  honor  or  its 
vital  interest.  Therefore,  a  treaty  that 
excludes  such  questions  from  arbitration 
is  not  a  treaty  that  covers  the  critical 
issues  from  which  wars  spring.  I  there- 
fore determined,  if  I  could,  to  negotiate  a 
treaty  that  would  leave  out  those  excep- 
tions and  include  all  questions  that  could 
be  arbitrated. 

There  are  many  questions  between  na- 
tions that  concern  the  welfare  of  both, 
with  respect  to  which,  under  any  system 
of  international  justice,  a  nation  must 
have  absolute  discretion  and  control  of 
its  own  conduct.  Take,  for  instance,  the 
question  whether  England  shall  take  part 
in  our  Panama  Exposition.  That  may 
cause  bad  feeling  in  California  or  in  this 
country  generally,  but  no  court  of  arbi- 
tration would  make  a  ruling  that  En- 
[101] 


THE  UNITED  STATES  AND  PEACE 

gland  was  obliged  to  take  part  in  our 
exposition.  That  is  not  a  justiciable  ques- 
tion. If,  however,  England  had  agreed 
by  treaty  to  take  part  in  our  exposition, 
then  a  right  would  be  created  by  contract, 
and  it  would  properly  become  the  sub- 
ject of  arbitration  and  decision. 

You  cannot  bring  all  subjects  of  dif- 
ference between  individuals  into  a  mu- 
nicipal court.  A  man  may  be  unneigh- 
borly;  he  may  not  call  on  his  neighbor, 
he  may  notify  his  neighbor  that  he  does 
not  propose  to  have  the  latter' s  children 
come  into  his  place;  he  may  do  a  lot  of  un- 
kind things  that  arouse  the  indignation  of 
his  neighbor  and  show  he  is  a  very  mean 
man.  But  these  do  not  give  any  cause 
for  a  suit.  One  cannot  compel  his  neigh- 
bor to  be  generous  and  good  and  courte- 
ous by  a  lawsuit.  In  other  words,  there 
is  a  field  into  which  courts  of  justice 
cannot  enter,  whether  they  be  municipal 
courts  in  a  State,  or  arbitral  courts  be- 
[  102  ] 


ARBITRATION  TREATIES 

tween  nations,  and  that  distinction  must 
be  just  as  clear  in  an  international  court 
as  in  one  of  our  domestic  tribunals. 

In  the  formulation  of  our  treaties  it  was 
necessary  to  hit  upon  some  term  which 
would  define,  as  a  class,  those  causes  of 
difference  between  nations  that  would 
constitute,  under  the  principles  of  inter- 
national law,  an  infringement  of  the  le- 
gal rights  of  another  nation  analogous 
to  rights  remediable  in  municipal  courts 
of  justice  between  individuals.  The  de- 
scription must  exclude  those  obligations 
of  courtesy  and  good-will  that  are  en- 
forced only  by  the  sanction  of  a  national 
conscience  or  by  the  influence  of  inter- 
national public  opinion,  or  by  what  Lord 
Haldane  has  referred  to  as  Sittlichkeit,  or 
international  "Good  Form."  The  anal- 
ogy between  matters  of  domestic  judicial 
cognizance  and  those  proper  to  be  con- 
sidered in  international  law  tribunals  is 
quite  close.  Mr.  Knox  found  a  phrase 
[  103] 


THE  UNITED  STATES  AND  PEACE 

that  seemed  to  me  to  be  most  happy  in 
the  description  of  the  character  of  ques- 
tions that  should  be  arbitrated  between 
the  United  States  and  other  estabHshed 
governments  if  negotiation  failed.  He 
found  it  in  an  opinion  of  Chief  Justice 
Fuller  in  a  case  in  which  the  Supreme 
Court  was  acting  as  a  quasi-international 
tribunal.  One  of  the  great  examples  of 
successful  international  arbitration  is  the 
arrangement  for  the  jurisdiction  of  the 
Supreme  Court  under  our  Constitution 
in  settling  the  controversies  between 
sovereign  States.  It  furnishes  a  model 
that  in  future  generations  will,  I  hope, 
prove  to  be  useful  in  the  formation 
of  a  general  arbitral  court  for  all  the 
stable  nations  of  the  world.  This  case 
to  which  I  refer  was  a  controversy  be- 
tween Kansas  and  Colorado  as  to  the 
water-rights  of  the  two  States  and  their 
respective  residents  and  landowners  in 
a  stream  which  began  in  one  State  and 
[  104  ] 


ARBITRATION  TREATIES 

ran  into  the  other.  The  Chief  Justice, 
speaking  of  the  effect  of  the  Constitution, 
said: 

Undoubtedly,  as  remarked  by  Mr.  Justice 
Bradley  in  Hans  vs.  Louisiana,  134  U.  S.  1, 
15,  the  Constitution  made  some  things  jus- 
tidahle,  "which  were  not  known  as  such  at 
the  common  law;  such,  for  example,  as  con- 
troversies between  States  as  to  boundary 
lines,  and  other  questions  admitting  of  judi- 
cial solution."  And  as  the  remedies  resorted 
to  by  independent  States  for  the  determina- 
tion of  controversies  raised  by  collision  be- 
tween them  were  withdrawn  from  the  States 
by  the  Constitution,  a  wide  range  of  matters, 
susceptible  of  adjustment,  and  not  purely 
political  in  their  nature,  was  made  justiciable 
by  that  instrument.     185  U.  S.  125,  141. 

Mr.  Knox  used  in  the  treaties  the 
word  justiciable  to  describe  the  differ- 
ences which  the  parties  bound  themselves 
to  arbitrate.  Those  controversies  only 
would  come  within  the  term  which  were 
just  cause  for  reprisal  by  the  complain- 
ing State  according  to  international  law. 
That  law  grants  a  reprisal  only  when 
[  105  ] 


THE  UNITED  STATES  AND  PEACE 

a  positive  wrong  has  been  inflicted  or 
rights  stricti  juris  are  withheld.  The  rule 
which  controls  foreign  and  independent 
states  in  their  relations  to  each  other 
is  that  the  primary  and  absolute  right 
of  a  state  is  seK-preservation.  The  im- 
provement of  her  revenues,  arts,  agricul- 
ture, and  commerce  are  incontrovertible 
rights  of  sovereignty.  She  has  domin- 
ion over  all  things  within  her  territory, 
including  all  bodies  of  water,  standing 
or  running,  within  her  boundary -line. 
Her  moral  obligation  to  observe  the  de- 
mands of  comity,  that  is,  of  good  neigh- 
borly feeling,  cannot  be  made  the  sub- 
ject of  legal  controversy.  In  the  light  of 
such  limitations  fully  recognized  in  inter- 
national law,  the  definition  of  those  is- 
sues intended  to  be  arbitrated  is  easily 
applied.     The  language  of  the  treaties  is: 

All  differences  .  .  .  relating  to  interna- 
tional matters  in  which  the  high  contracting 
parties  are  concerned  by  virtue  of  a  claim  of 

[  106  ] 


AEBITRATION  TREATIES 

right  made  by  one  against  the  other  under 
treaty  or  otherwise,  and  which  are  justiciable 
in  their  nature  by  reason  of  being  susceptible 
of  decision  by  the  application  of  the  principles 
of  law  or  equity. 

First,  the  differences  must  relate  to  in- 
ternational matters;  second,  they  arise 
upon  a  claim  of  right,  i,  e,,  a  right  under 
a  treaty  or  under  principles  of  interna- 
tional law  of  one  against  the  other;  third, 
they  must  be  justiciable,  i,  e.,  capable  of 
judicial  solution  by  application  of  the 
principles  of  law  or  equity.  Those  prin- 
ciples, of  course,  are  principles  of  interna- 
tional law  or  equity.  As  this  phrase  is 
used  not  only  in  an  English  treaty  but 
in  a  French  treaty,  the  words  are  not  to 
be  confined  to  the  technical  meaning  of 
law  and  equity  as  those  words  are  under- 
stood in  the  jurisprudence  of  England 
and  the  United  States.  Still,  the  terms 
law  and  equity  have  a  similar  significa- 
tion in  many  countries.  Ancient  sys- 
tems of  law  grown  rigid  have  been  modi- 
[  107] 


THE  UNITED  STATES  AND  PEACE 

fied  by  applying  more  liberal  principles 
in  reaching  justice.  Equity  has  amelio- 
rated and  mitigated  the  severity  of  the 
law.  The  two  words  used  together,  there- 
fore, were  intended  to  comprehend  all 
the  rules  of  international  law  affecting 
the  rights  and  duties  of  nations  toward 
each  other  which  are  not  mere  rules  of 
comity  but  are  positive  and  may  be 
properly  enforced  by  judicial  action. 

The  first  clause  of  the  Knox  treaties 
provides  that  such  questions  shall  be 
submitted  to  the  Permanent  Court  of 
Arbitration  established  at  The  Hague,  or 
to  some  other  tribunal  agreed  to  by  the 
parties  by  special  agreement,  which  shall 
be  made  on  the  part  of  the  United  States 
by  the  President  of  the  United  States, 
by  and  with  the  advice  and  consent  of 
the  Senate.  The  second  clause  provides 
for  the  appointment  of  a  Joint  High  Com- 
mission of  Inquiry  to  investigate  any 
controversy  between  the  two  parties, 
[  108] 


ARBITRATION  TREATIES 

whether  within  or  without  Article  I, 
which  investigation  may  be  postponed 
for  a  year  by  either  party  in  order  to 
give  an  opportunity  for  negotiation  and 
settlement.  The  Joint  High  Commission 
is  to  be  constituted  by  each  party's  des- 
ignating th;*ee  of  its  own  nationals  to  sit 
therein,  with  authority  to  vary  the  char- 
acter of  its  appointees.  The  action  of 
the  Joint  High  Commission  is  to  be  re- 
garded merely  as  advisory  except  in  one 
case.  If  either  party  contends  that  the 
diflference  is  not  arbitrable  by  the  terms 
of  the  treaty,  the  Joint  High  Commis- 
sion, by  a  vote  of  five  to  one,  may  de- 
cide that  it  is  arbitrable  within  the 
treaty,  and  the  decision  is  to  bind  the 
parties.  Thereafter,  the  arbitration  is  to 
proceed  before  The  Hague  or  other  tri- 
bunal as  provided  in  the  treaty.  Good 
faith  under  the  treaty  would  require,  in 
the  event  of  such  a  decision,  that  the 
President  and  the  Senate  make  the  spe- 
[  109] 


THE  UNITED  STATES  AND  PEACE 

cific  agreement  required  in  the  first  sec- 
tion and  proceed  to  carry  out  the  arbitra- 
tion. Of  course  it  would  be  within  the 
power  of  the  Senate,  as,  indeed,  it  would 
be  within  the  power  of  the  President,  to 
decline  to  make  such  a  specific  agree- 
ment and  thus  to  break  their  obligation 
and  that  of  their  government. 

I  suggested  to  Mr.  Knox  a  form  of 
treaty  under  which  either  party  might 
submit  to  the  permanent  court  at  The 
Hague  its  complaint  against  the  other, 
and  the  court  after  objection  and  hearing 
i  should  first  decide  whether  the  complaint 
constituted  an  arbitrable  case  within  the 
first  clause  of  the  section,  and  if  it  so 
found,  it  should  then  proceed  to  hear  and 
decide  the  issue  made.  But  Mr.  Knox 
felt  that  the  time  had  not  arrived  when 
so  radical  a  proposition  as  that  would  be 
approved  by  the  Senate  or  possibly  by 
the  country,  and  therefore  he  suggested 
a  preliminary  decision  as  to  jurisdiction 
[110] 


ARBITRATION  TREATIES 

by  this  Joint  High  Commission  to  be 
composed  of  three  Americans  and  three 
Enghshmen,  or  three  Americans  and  three 
Frenchmen,  as  the  case  might  be.  I  re- 
garded this  as  a  very  mild  provision,  be- 
cause at  least  two  Americans  out  of  three 
must  concur  in  holding  that  the  differ- 
ence in  question  was  within  the  descrip- 
tion of  the  general  class  of  questions 
agreed  to  be  arbitrated  before  the  judg- 
ment could  be  binding  on  both  parties. 
The  suggestion  of  possible  danger  of  in- 
justice to  the  interests  of  the  United 
States  arising  from  the  decision  by  a 
majority  of  five  to  one  of  a  tribunal 
composed  haK  of  Americans  and  half  of 
the  nationals  of  the  other  treaty-making 
power  is  chimerical  and  imaginary. 

Such  objections  grow  out  of  the  un- 
willingness of  the  men  who  suggest  them 
to  enter  into  any  arbitration  by  contract 
or  treaty  in  advance  of  the  happening 
of  the  event  which  gives  rise  to  the  dif- 
[111] 


THE  UNITED  STATES  AND  PEACE 

ference.  Consciously  or  unconsciously, 
they  are  not  sufficiently  in  favor  of  a  ju- 
dicial decision  of  questions  between  na- 
tions to  be  willing  to  lay  down  a  general 
law  for  arbitration  or  to  make  a  general 
classification  of  subjects  for  arbitration 
and  abide  by  it.  They  insist  on  knowing 
all  the  circumstances  with  reference  to 
a  particular  issue  before  they  are  will- 
ing to  bind  themselves  to  arbitrate  it 
at  all. 

As  in  the  consideration  of  the  Hay 
treaties,  so  here  it  was  argued  that  the 
President  and  the  Senate  would  unlaw- 
fully delegate  their  treaty-making  power 
if  they  agreed  that  a  tribunal  should 
finally  adjudge  that  a  specific  difiference, 
subsequently  arising,  was  in  the  class  of 
differences  covered  by  the  treaty.  It  is 
very  difficult  to  argue  this  question  be- 
cause the  answer  to  it  is  so  plain  and  ob- 
vious. The  question  whether  a  specific 
case  arising  after  the  general  treaty  is 
[  112  ] 


ARBITRATION  TREATIES 

made  comes  within  the  language  of  the 
treaty  is  a  question  of  the  construction 
of  the  treaty  and  its  appUcation  to  events 
subsequently  arising.  Construction  of  a 
treaty  is  the  issue  more  frequently  arbi- 
trated between  nations  than  any  other. 
It  is  true  that  the  question  here  is  one 
of  jurisdiction  rather  than  one  upon  the 
merits  of  the  controversy,  but  both  arise 
in  the  construction  of  a  treaty  and  both, 
therefore,  are  the  normal  subjects  of  ar- 
bitration. To  leave  a  question  arising 
in  our  foreign  relations  to  arbitration  is, 
of  course,  not  a  delegation  of  power  at 
all.  Delegated  power  is  conferred  on  an 
agent.  The  tribunal  does  not  act  as 
agent  but  as  a  court  deriving  its  power 
not  from  either  party  but  from  the  agree- 
ment of  both.  The  view  that  makes  a 
submission  to  a  tribunal  a  delegation  of 
power  to  an  agent  would  prevent  the 
President  and  Senate  from  agreeing  to 
arbitrate  anything  at  all.  And  yet  we 
[  113] 


THE  UNITED  STATES  AND  PEACE 

have  made  arbitration  treaties  since  the 
Constitution  was  adopted  and  before. 
The  rightfulness  of  the  power  exercised 
under  these  Knox  treaties  to  submit  the 
question  of  jurisdiction  to  the  arbitral 
tribunal  is  much  clearer  than  was  the 
power  of  the  Senate  to  consent  that  the 
President  might  make  the  specific  agree- 
ment in  the  Hay  treaties;  and  this  for 
two  reasons;  first,  because  in  the  Knox 
treaties  the  classification  is  one  of  clear 
definition  as  it  was  not  in  the  Hay  trea- 
ties; second,  in  the  Hay  treaties  the 
President  was  an  executive  agent  and 
the  question  of  unlawful  delegation  to 
him  alone  of  the  treaty-making  power 
fairly  arose.  But  here  the  objection  is 
a  plain  confusion  of  conferring  power  on 
an  agent  with  submitting  a  judicial  issue 
to  a  court.  The  only  logical  position 
that  could  defeat  the  right  of  the  Presi- 
dent and  the  Senate  to  agree  to  submit 
to  a  tribunal  the  question  whether  a 
[  114] 


ARBITRATION  TREATIES 

subsequent  difference  comes  within  the 
general  but  definite  classification  of  ar- 
bitrable issues  in  a  general  arbitration 
treaty  is  the  utterly  untenable  one  that 
the  President  and  the  Senate  have  no 
right  to  submit  to  an  international  tri- 
bunal at  all  the  decision  of  those  inter- 
national matters  that  the  President  and 
the  Senate  under  the  Constitution  are 
given  power  to  deal  with  in  our  interna- 
tional relations. 

Nevertheless,  the  Senate  struck  out 
the  provision  for  a  decision  by  the  Joint 
High  Commission.  I  considered  this 
proposition  the  most  important  feature 
of  the  treaty,  and  I  did  so  because  I  felt 
that  we  had  reached  a  time  in  the  making 
of  promissory  treaties  of  arbitration  when 
they  should  mean  something.  The  Sen- 
ate halted  just  at  the  point  where  a  pos- 
sible and  real  obligation  might  be  created. 
I  do  not  wish  to  minimize  the  importance 
of  general  expressions  of  good-will  and 
[115] 


THE  UNITED  STATES  AND  PEACE 

general  declarations  of  willingness  to  set- 
tle everything  without  war,  but  the  long 
list  of  treaties  that  mean  but  little  can 
now  hardly  be  made  longer,  for  they  in- 
clude substantially  all  the  countries  of 
the  world.  The  next  step  is  to  include 
something  that  really  binds  somebody 
in  a  treaty  for  future  arbitration.  The 
treaties  of  arbitration  are  not  going  to 
accomplish  substantial  progress  unless  we 
enter  into  them  with  a  willingness  and 
a  consciousness  that  they  may  involve  us 
in  decisions  to  our  detriment.  We  can- 
not win  every  case.  Nations  are  like 
individuals;  they  are  not  always  right, 
even  though  they  think  they  are,  and 
if  arbitration  is  to  accomplish  anything, 
we  must  be  willing  to  lose  and  abide  by 
the  loss.  If  we  are  to  establish  real  ar- 
bitral courts  which  shall  be  useful  as  a 
permanent  method  of  settling  interna- 
tional disputes,  we  must  agree  in  advance 
what  the  jurisdiction  of  those  courts  shall 
[  116] 


ARBITRATION  TREATIES 

be,  and  then  abide  by  their  holding  as  to 
that  jurisdiction  and  perform  the  judg- 
ments that  are  made  against  us.  But 
if  we  assume  that  it  is  dangerous  for  us 
to  consent  to  go  into  any  arbitration,  lest 
the  court  make  gross  errors  in  interna- 
tional law  and  may  decide  contrary  to 
the  principles  of  the  law  as  we  entertain 
them,  then  let  us  take  some  other  method 
of  settling  international  disputes. 

The  Senate,  in  its  conditional  concur- 
rence in  the  arbitration  treaties  prepared 
by  Secretary  Knox,  made  certain  reser- 
vations. The  first  limitation  was  that 
they  should  not  authorize  the  submission 
to  arbitration  of  any  question  affecting 
the  admission  of  aliens  into  the  United 
States.  If  there  are  not  treaties  on  the 
subject,  the  rule  of  international  law  is 
clear  and  specific  that  no  aliens  can  be 
admitted  into  a  country  without  the  con- 
sent of  its  government,  and  that  no  other 
nation  can  justly  claim  the  right  to  have 
[  in  ] 


THE  UNITED  STATES  AND  PEACE 

her  nationals  admitted  to  such  territory. 
Why  is  it  necessary  to  insert  in  a  treaty 
of  arbitration  the  principles  of  interna- 
tional law  which  must  necessarily  guide 
the  action  of  an  arbitral  tribunal?  If  so, 
then  every  treaty  must  be  an  interna- 
tional code.  But  if  the  exception  meant 
to  exclude  every  question  under  a  treaty 
affecting  the  admission  of  aliens,  as  it 
probably  did,  then  it  was  most  indefen- 
sible. If  we  have  agreed  to  let  in  En- 
glishmen or  Frenchmen  or  Japanese  or 
Chinese  by  treaty,  on  what  ground  ought 
we  to  evade  or  avoid  the  effect  of  the 
plighted  faith  of  the  nation  to  do  so? 
Why  should  we  be  afraid  to  have  our 
promises  in  this  regard  construed  by  an 
impartial  tribunal?  In  other  words,  is 
not  this  a  reservation  of  a  right  to  vio- 
late our  own  plighted  faith  imposed  by 
the  Senate  as  a  condition  of  its  concur- 
rence in  the  treaties?  Was  not  the  char- 
acter of  this  condition  a  sufficient  reason 
[118] 


ARBITRATION  TREATIES 

for  the  executive  to  refuse  to  ask  the 
other  powers  to  consent  to  it? 

The  second  condition  of  exclusion  is 
very  Uke  the  first.  It  eHminates  from 
arbitration  any  question  of  the  admis- 
sion of  ahens  to  the  educational  institu- 
tions of  the  several  States.  We  have 
made  treaties  in  which  we  have  agreed 
that  the  children  of  aliens  resident  in 
this  country  may  enjoy  the  educational 
advantages  of  the  children  of  the  citizens 
of  the  States  in  which  they  live.  Now, 
this  condition  was  an  attempt  to  reserve 
from  arbitration  the  judgment  of  a  high 
tribunal  upon  the  question  whether  we 
should  comply  with  our  treaty  obliga- 
tions in  that  regard.  Why  shouldn't  we? 
If  we  make  the  treaty,  why  shouldn't  we 
fulfil  it?  What  is  the  object  of  making 
a  treaty  if  it  is  not  to  perform  it?  If 
there  were  not  a  treaty  giving  the  right 
to  the  children  of  aliens  to  take  advan- 
tage of  our  educational  privileges,  inter- 
[119] 


THE  UNITED  STATES  AND  PEACE 

national  law  would  impose  no  obliga- 
tion on  our  government,  or  on  the  State 
governments  either,  to  furnish  such  priv- 
ileges. 

The  third  exclusion  was  of  any  ques- 
tion of  "the  territorial  integrity  of  the 
several  States  or  of  the  United  States." 
Well,  suppose  a  question  of  boundary 
had  arisen  and  the  issue  was  whether 
land  claimed  by  a  State  or  the  United 
States  under  a  previous  treaty  belonged 
to  us  or  belonged  to  the  other  country, 
why  should  it  not  be  made  the  subject 
of  arbitration?  Didn't  we  arbitrate  the 
Alaska  boundary  .^^  If  we  have  some- 
body else's  land,  if  it  does  not  belong 
to  us  and  a  correct  construction  of  the 
treaty  shows  that  it  does  not  belong  to 
us,  what  objection  is  there  to  our  part- 
ing with  it  under  a  judgment  of  the 
court? 

The  fourth  class  of  questions  excluded 
was  of  the  alleged  indebtedness  or  mon- 
[  120  ] 


ARBITRATION  TREATIES 

eyed  obligation  of  any  State  of  the  United 
States.  I  agree  that  a  sovereign  State 
is  not  obUged  to  allow  a  suit  against  her- 
self by  any  citizen  or  any  individual,  and 
that  immunity  from  such  a  suit  is  one 
of  the  attributes  of  sovereignty.  But 
the  very  object  of  international  arbitra- 
tions and  of  general  treaties  to  provide 
them  is  to  do  away  with  such  immu- 
nity as  between  the  parties.  The  com- 
monest form  of  litigated  questions  in  an 
international  arbitration  is  a  question  of 
liability  of  a  debt  of  one  of  the  parties  to 
the  other. 

Why  should  the  indebtedness  of  the 
separate  States  be  excluded  in  an  arbi- 
tration by  the  United  States  with  for- 
eign countries?  The  United  States  is 
the  representative  of  the  States.  Under 
the  Constitution  the  United  States  acts 
for  and  represents  the  whole  country, 
States  and  all.  The  Federal  Government 
is  the  only  one  the  other  nations  know. 
[  121] 


THE  UNITED  STATES  AND  PEACE 

That  was  what  our  Constitution  was  in- 
tended to  effect.  If  we  are  in  favor  of 
settUng  controversies  between  sovereign- 
ties by  arbitration,  in  order  to  avoid 
war,  the  only  way  we  can  make  our 
States  parties  to  such  arbitration  is 
through  the  National  Government.  It  is 
said  that  the  United  States  is  not  liable 
internationally  for  the  debts  of  the  States. 
That  may  or  may  not  be  true,  but  if  it 
is  not  liable,  then  the  arbitral  tribunal 
may  say  so.  If  it  is  Uable  in  interna- 
tional law  then  it  should  pay  the  debts 
of  the  States  and  it  would  have  a  right 
of  action  against  the  States,  which  it 
might  enforce  because  it  has  the  right  to 
sue  a  State.  Why  should  the  sovereign 
States  of  our  nation  be  represented  as 
complainants  by  our  central  government 
in  arbitration  and  not  be  made  defen- 
dants through  the  same  representation  .f* 
Even  the  Senate  did  not  attempt  to  ex- 
clude debts  of  the  United  States  from 
[  122  1 


ARBITRATION  TREATIES 

such  arbitration.  Why  should  the  debts 
of  the  States  be  excluded?  Of  course, 
the  treaties  only  affected  controversies 
thereafter  arising,  so  that  past  indebted- 
ness was  not  included  within  their  first 
clause.  I  am  not  at  all  sure  that  it 
would  not  be  a  very  wholesome  arrange- 
ment to  fix  some  responsibility  upon  the 
States  and  to  give  them  more  motive 
than  they  have  had  in  the  past  to  avoid 
repudiation  of  their  just  obligations.  The 
necessary  exclusion  of  such  indebtedness 
from  questions  that  might  be  arbitrated 
seemed  to  me  to  be  both  unnecessary  and 
improper. 

The  final  exclusion  was  that  the  sub- 
ject-matter of  arbitration  should  not  in- 
clude any  question  dependent  upon  or 
involving  the  maintenance  of  the  tradi- 
tional attitude  of  the  United  States  con- 
cerning American  questions  commonly 
described  as  the  Monroe  Doctrine  or 
other  purely  governmental  policy.  John 
[  123  ] 


THE  UNITED  STATES  AND  PEACE 

Bassett  Moore,  late  counsellor  to  the  De- 
partment of  State,  and  an  international 
lawyer  of  profound  ability  and  acumen, 
pointed  out  that  the  Monroe  Doctrine, 
or  other  governmental  policy  of  like  char- 
acter, could  not  be  made  the  subject  of 
arbitration  under  the  general  clause  of 
justiciable  questions  to  be  settled  on  prin- 
ciples of  law  or  equity,  and  that  no  ex- 
ception was  necessary.  I  did  not  have 
the  slightest  objection,  however,  to  in- 
cluding such  a  restriction  in  the  ratifica- 
tion of  the  treaty,  and,  had  the  condi- 
tions been  limited  to  it,  I  would  have 
attempted  to  induce  France  and  England 
to  consent  to  it.  They  had  consented  to 
it  in  other  treaties,  and  I  presume  they 
would  have  done  so  here.  Had  this  been 
the  only  condition  imposed  by  the  Sen- 
ate, I  believe  the  treaties  might  have 
gone  through.  Senator  Root  and  Sen- 
ator Cullom  urged  the  confirmation  of 
the  treaties  with  only  this  condition,  and 
[  124  ] 


ARBITRATION  TREATIES 

Senator  Burton  was  in  favor  of  concur- 
ring in  the  treaties  as  they  were  presented, 
and  so  was  Senator  Raynor;  but  Sena- 
tor Lodge  and  Senator  Bacon  and  the 
majority  of  the  Committee  on  Foreign 
Relations  took  the  view  that  in  some  way 
or  other  there  was  an  unlawful  delega- 
tion of  the  treaty-making  power  to  a  ju- 
dicial tribunal  appointed  to  construe  a 
treaty  and  determine  its  application  to 
particular  facts. 

A  fair  argument  against  the  wisdom 
and  justice  of  the  conditions  that  the 
Senate  of  the  United  States  insisted  upon 
in  its  concurrence  in  the  treaties  is  the 
fact  that  England  and  France  imposed 
no  such  conditions,  and  their  interests 
were  just  as  much  at  stake  as  ours  in 
the  making  and  performance  of  th-e  trea- 
ties. To  this  Senator  Lodge  answers 
that  we  have  greatly  more  interests  than 
they  have  to  be  affected  by  arbitration. 
I  confess  I  do  not  understand  the  force 
f  125  ] 


THE  UNITED  STATES  AND  PEACE 

of  his  argument.  The  border  between 
Canada  and  ourselves  is  one  of  four 
thousand  miles,  and  there  are  just  as 
many  legal  questions  affecting  Canada 
as  the  United  States,  and  the  questions 
that  affect  Canada  affect  Great  Britain. 
We  have  many  questions  with  France 
and  with  Great  Britain  directly.  Indeed, 
we  have  as  many  with  them  as  they 
have  with  us,  and,  if  they  are  willing 
to  submit  matters  to  arbitration,  why 
shouldn't  we? 

With  deference  to  those  who  oppose 
these  treaties  I  must  be  allowed  to  say 
that  the  real  reason  for  defeating  them 
was  an  unwillingness  to  assent  to  the 
principle  of  arbitration  without  knowing 
something  in  advance  of  whether  we  were 
going  to  win  or  lose.  That  spirit  is  not 
one  that  will  promote  the  cause  of  arbi- 
tration. 

I  cannot  say  how  much  good  the  sign- 
ing of  the  treaties  did.     Had  they  gone 
[  126  ] 


ARBITRATION  TREATIES 

through,  I  beheve  they  would  have  been 
beneficial  in  the  cause  of  peace.  The 
agitation  in  their  favor  sowed  some  seed 
in  the  minds  of  the  American  people 
that  may  sprout  and  grow  into  useful 
plants;  but,  however  this  may  be,  those 
of  us  who  believe  in  arbitration  as  the 
means  of  bringing  about  a  general  arbi- 
tral court  which  shall  settle  all  issues 
between  nations  capable  of  judicial  solu- 
tion must  continue  the  struggle,  because 
it  is  right  and  its  success  will  measure 
the  progress  of  civilization. 

I  have  been  criticised  for  not  going 
ahead  with  the  treaty  as  provided  by 
the  Senate's  proposed  amendments,  and 
I  am  quite  willing  to  admit  that  there 
is  room  for  discussion  upon  that  point. 
I  can  only  say  why  I  did  not.  I  was  anx- 
ious to  make  a  substantial  step  forward 
in  the  matter  of  arbitration  treaties.  I 
was  anxious  to  give  a  model  to  the  world 
of  a  treaty  that  meant  something  in  the 
[  127  1 


THE  UNITED  STATES  AND  PEACE 

matter  of  arbitration.  A  treaty  grid- 
ironed  with  such  specific  and  numerous 
conditions  as  the  Senate  imposed,  and 
emasculated  by  striking  out  its  really 
binding  feature,  would  not  offer  to  the 
world  such  evidence  of  progress  as  to 
encourage  the  making  of  similar  trea- 
ties between  other  countries.  Of  course, 
neither  with  England  nor  with  France 
was  there  need  for  such  a  general  arbitra- 
tion treaty.  It  is  hardly  conceivable, 
when  we  consider  the  respective  relations 
between  the  two  ©ountries  and  ourselves, 
that  any  difference  could  arise  which 
would  not  be  settled  by  arbitration. 
Therefore,  the  mere  fact  of  making  a 
treaty  of  arbitration  with  either  had  lit- 
tle practical  or  intrinsic  importance  upon 
the  issues  likely  to  arise  between  us  and 
them.  The  treaties  were  important  only 
as  an  encouragement  to  other  nations  in 
the  settlement  of  theii-  differences.  Such 
a  treaty,  if  really  comprehensive,  would 
[  128  ] 


ARBITRATION  TREATIES 

have  been  thus  useful  and  influential. 
As  mutilated  by  the  Senate,  it  seemed 
to  me  it  would  not  efifect  any  helpful 
result. 

The  discussion  by  senators  of  this 
question  shows  that  many  of  them 
thought  that  such  a  proposition  as  that 
which  I  submitted  to  the  Senate  would 
in  some  way  minimize  the  importance 
of  the  Senate  in  treaty  making.  Every 
senator  alluded  to  the  fact  that  in  the 
constitutional  convention  Mr.  Madison 
proposed  that  the  Senate  should  make 
the  treaties  of  the  government,  but  that 
ultimately  it  was  thought  better  to  give 
the  President  the  initiation  and  require 
a  concurrence  of  the  Senate  by  two 
thirds  in  treaties.  Now,  I  am  the  last 
one  to  seek  to  minimize  the  importance 
of  the  Senate  in  either  the  treaty-making 
power  or  as  a  co-ordinate  branch  of  the 
legislature.  I  regard  the  Senate  as  one 
of  the  most  important  and  valuable  fea- 
[  129  ] 


THE  UNITED  STATES  AND  PEACE 

tures  of  the  government.  With  the  ten- 
ure of  six  years  for  each  senator,  with 
the  equal  representation  for  the  large 
and  small  States,  it  furnishes  a  check 
against  too  rapid  and  radical  action.  It 
has  served  the  country  well  in  times  past, 
and  will,  I  doubt  not,  continue  to  be  of 
the  utmost  benefit  in  keeping  the  course 
of  our  government  along  safely  progres- 
sive lines.  What  ought  to  be  done  by 
arbitration  treaties  is  to  bind  the  Presi- 
dent, the  Senate,  and  the  country  to 
abide  by  the  judgment  of  an  impartial 
tribunal  in  as  many  cases  of  interna- 
tional difference  as  possible. 

Mr.  Bryan  is  now  engaged  in  making 
a  number  of  treaties  which  will  facili- 
tate inquiry  and  investigation  and  ad- 
visory report  into  differences  of  nations 
before  war  comes,  and  which  are  so  framed 
as  to  delay  hostilities  though  they  do  not 
provide  for  arbitration.  I  am  glad  that 
such  treaties  are  being  made.  I  think 
[  130  ] 


ARBITRATION  TREATIES 

that  the  preparation  of  such  a  report  will 
furnish  useful  delay  while  it  will  stimulate 
the  negotiation  of  a  settlement.  Of  course, 
the  step  is  a  small  one,  but  as  far  as  it 
goes  it  helps.  The  truth  is  that  the  pro- 
vision with  respect  to  the  postponement  of 
a  year  in  the  general  arbitration  treaties 
with  France  and  Great  Britain,  which  I 
have  been  discussing,  was  suggested  to 
me  by  Mr.  Bryan  himself,  though  the 
provision  for  investigation  and  report  was 
taken  from  The  Hague  conventions. 

The  ideal  that  I  would  aim  at  is  an 
arbitral  court  in  which  any  nation  could 
make  complaint  against  any  other  na- 
tion, and  if  the  complaint  is  found  by 
the  court  to  be  within  its  jurisdiction, 
the  nation  complained  against  should  be 
summoned,  the  issue  framed  by  pleadings, 
and  the  matter  disposed  of  by  judgment. 
It  would,  perhaps,  sometimes  require  an 
international  police  force  to  carry  out 
the  judgment,  but  the  public  opinion  of 
\  131  1 


THE  UNITED  STATES  AND  PEACE 

nations  would  accomplish  much.  With 
such  a  system  we  could  count  on  a  grad- 
ual abolishment  of  armaments  and  a  feel- 
ing of  the  same  kind  of  security  that  the 
United  States  and  Canada  have  to-day 
which  makes  armaments  and  navies  on 
our  northern  border  entirely  unnecessary. 


[  132 


CHAPTER  IV 

EXPERIMENTS  IN  FEDERATION 
FOR  JUDICIAL  SETTLEMENT 
OF  INTERNATIONAL  DISPUTES 

The  federative  trend  in  international 
affairs  has  a  distinct  bearing  upon  the 
movement  toward  universal  peace,  al- 
though, of  course,  the  federative  trend  has 
been  more  manifest  in  the  formation  of 
governments  than  in  its  effect  upon  the 
settlement  of  international  disputes.  In 
respect  to  the  formation  of  governments 
this  trend  is  the  tendency,  on  the  part 
of  peoples  under  independent  sovereign 
governments  fearing  foreign  aggression 
and  wishing  to  avoid  difficulties  with  their 
neighbors,  to  associate  themselves  with 
[  133  ] 


THE  UNITED  STATES  AND  PEACE 

their  neighbors  in  the  estabhshment  of  a 
common  and  central  agency  of  govern- 
ment to  which  each  is  to  delegate  and  con- 
vey part  of  its  sovereignty.  The  control 
thus  delegated  usually  covers  foreign  re- 
lations and  the  making  of  war  and  peace, 
and  sometimes  a  part  of  the  jurisdiction 
of  internal  matters.  Whether  the  dele- 
gation of  power  and  the  structure  upon 
which  the  federation  is  founded  includes  a 
formal  means  of  settling  differences  be- 
tween the  members  of  the  confederation 
or  not,  it  incidentally  and  necessarily  has 
this  eflfect.  We  may  well  emphasize  the 
importance  of  federation  in  bringing 
about  world  peace  and  the  utility  of 
studying  the  historical  instances  of  its 
application  as  a  model  for  a  plan  by 
which  independent  powers  shall  consent 
to  abide  the  judgment  in  proper  cases  of 
a  great,  permanent,  impartial  interna- 
tional court  of  skilled  and  just  judges. 
The  subject  of  this  chapter  was  sug- 
[  134] 


EXPERIMENTS  IN  FEDERATION 

gested  by  Mr.  Holt,  the  editor  of  The 
Independent  and  one  of  the  strongest 
advocates  of  world  peace  that  I  know. 
He  thought  an  examination  of  historical 
precedent  and  the  application  of  it  to 
the  problem  he  has  so  much  at  heart 
might  be  useful. 

The  adoption  of  the  principle  of  fed- 
eration in  political  government  dates  far 
back  in  Grecian  history.  Its  best  ex- 
ample is  found  in  the  Achaian  League  in 
the  Peloponnesus  of  Greece,  which,  be- 
ginning in  the  small  territory  of  Achaia, 
gradually  grew  in  extent  of  constituent 
cities  until  it  included  most  of  the  Pelo- 
ponnesian  cities  and  a  number  of  others 
in  the  northern  peninsula.  In  its  sec- 
ond and  more  perfect  form,  it  was  re- 
organized in  280  B.  C.  and  lasted  about 
one  hundred  and  twenty-five  years.  It 
was  formed  for  the  purpose  of  resisting 
the  dominion  of  Macedon.  The  mem- 
bers of  it  were  independent  municipal 
[  135] 


THE  UNITED  STATES  AND  PEACE 

sovereignties  and,  in  coming  into  the 
league,  delegated  to  the  executive  and 
legislative  authorities  of  the  league,  whom 
they  chose,  control  over  their  foreign 
relations  and  the  making  of  war  and  of 
peace.  The  historian  Freeman  finds  many 
similarities  between  our  Federal  Consti- 
tution and  that  of  the  Achaian  League. 
He  points  out  the  fact  that  Hamilton  and 
Madison,  although  they  studied  Grecian 
history,  were  uninformed  as  to  what  he 
thinks  the  remarkable  resemblance  be- 
tween the  federal  structure  of  govern- 
ment in  this  league  and  that  which  those 
statesmen  did  much  to  frame  in  our  fun- 
damental law  of  1789.  They  were  mis- 
led, he  says,  through  the  inaccuracies  of  a 
French  historian,  and  instead  of  looking 
to  the  Achaian  League,  as  they  well 
might  have  done,  they  derived  com- 
fort and  suggestion  from  erroneous  ac- 
counts of  the  nature  of  the  Amphictyonic 
League  as  a  federal  council  of  Greece.  He 
r  136  1 


EXPERIMENTS  IN  FEDERATION 

points  out,  and  other  historians  sustain 
him  in  the  view,  that  the  Amphietyonic 
League  was  nothing  but  an  association 
of  the  various  tribes  of  Greece,  which, 
through  their  tribal  representatives,  met 
in  a  council  at  Delphi,  where  was  the 
Oracle  of  Apollo,  and  there,  in  the  in- 
terest of  religion,  adopted  measures  look- 
ing to  its  promotion  and  the  preservation 
of  the  shrine.  It  was  really  nothing 
more  than  an  ecclesiastical  synod.  Like 
not  a  few  religious  conferences,  however, 
it  occasionally  adopted  resolutions  that 
touched  matters  that  were  hardly  within 
its  religious  jurisdiction.  It  undoubtedly 
at  times  had  some  political  influence 
through  its  religious  importance.  The 
kings  of  Macedon  subsequently  used  it 
as  an  instrumentality  in  the  politics  of 
Greece,  but  it  has  no  bearing,  as  Hamil- 
ton and  Madison  thought  it  did,  upon 
the  use  of  the  federative  principle  in  the 
formation  of  governments.  Mr.  Freeman 
[  137  1 


THE  UNITED  STATES  AND  PEACE 

says:  "It  is  clear  that  Hamilton  and 
Madison  knew  hardly  anything  more  of 
Grecian  history  than  what  they  had 
picked  from  the  'Observations'  of  the 
Abbe  Mably.  But  it  is  no  less  clear  that 
they  were  incomparably  better  qualified 
to  understand  and  apply  what  they  did 
know." 

The  constitution  of  the  Achaian  League 
did  not  provide  for  a  federal  tribunal,  and 
I  cannot  find  in  the  somewhat  lengthy 
volume  of  Mr.  Freeman  any  reference 
whatever  to  judicial  matters  in  the  his- 
tory of  federation  in  Greece  and  Rome. 
Mr.  Freeman  says  that  it  was  the  custom 
among  Grecian  cities,  when  the  inter- 
national rights  of  one  were  broken  by 
another,  to  submit  the  issue  to  the  ar- 
bitrament of  a  third  city.  Probably  in 
this  way  the  differences  between  the 
members  of  the  Achaian  Federation  were 
settled  when  they  arose.  But  it  is  a 
thing  that  we  must  realize,  though  it  is 
[  138  ] 


EXPERIMENTS  IN  FEDERATION 

a  little  hard  to  do  so,  that  courts  and 
judges  as  such — having  only  judicial 
functions — are  a  comparatively  modern 
invention.  The  Book  of  Judges  in  the 
Old  Testament  suggests  the  idea  that 
they  must  have  had  judges  in  Israel,  but 
while  these  judges  heard  judicial  contro- 
versies, as  we  know,  they  were  really 
civil  patriarchal  rulers  who  exercised  ex- 
ecutive and  legislative  as  well  as  judicial 
powers. 

Even  in  the  golden  era  of  the  Roman 
Empire,  when  the  rule  of  law  was  being 
established  by  law-writers  and  juris- 
consults, in  the  four  centuries  before  the 
Code  of  Justinian,  there  were  no  judges 
as  such.  There  was  an  executive  officer, 
called  the  Praetor,  whose  business  it  was 
to  execute  the  law.  He  was  not  gener- 
ally a  lawyer.  When  he  had  a  case  in 
the  execution  of  the  law  that  involved  a 
judicial  inquiry  he  formulated  his  case 
and  submitted  it  to  a  referee,  who  was 
[  139  ] 


THE  UNITED  STATES  AND  PEACE 

not  necessarily  a  jurisconsult  or  learned 
in  the  law.  He  was  called  a  Judex,  and 
from  the  title  given  him  we  get  the 
name  of  judge.  The  Praetor  was  elected 
every  year,  so  that,  in  spite  of  the  great 
debt  that  we  owe  to  republican  and 
imperial  Rome  for  the  supremacy  that 
they  gave  to  law  and  its  administration 
and  the  symmetry  that  they  gave  to 
jurisprudence,  we  cannot  say  that  we 
owe  to  them  a  judicial  system  of  perma- 
nent, learned,  and  independent  courts. 
For  that  we  must  look  to  the  history 
of  Anglo-Saxon  civil  liberty,  because  it 
is  in  English  history  that  we  find  the 
ultimate  division  of  governmental  func- 
tions between  the  executive  and  legisla- 
tive on  the  one  hand  and  the  judicial  on 
the  other.  The  term  ''court"  is  a  late 
word  derived  from  the  fact  that  the  hear- 
ing of  the  tribunal  was  heard  in  a  court 
or  courtyard.  This  failure  to  recognize 
a  difference  between  the  executive,  leg- 
[  140  ] 


EXPERIMENTS  IN  FEDERATION    ^. 

islative,  and  judicial  functions  manifests 
itself  even  now  when  we  come  to  con- 
sider international  relations  and  tribu- 
nals for  the  settlement  of  international 
disputes.  I  shall  refer  to  this  later. 
After  the  ancient  local  proprietary  or 
manorial  courts  lost  their  jurisdiction, 
the  King  of  England  in  council  or  in 
Parliament  became  the  seat  of  all  gov- 
ernmental power,  executive,  legislative, 
and  judicial.  Parliament  was  not  only 
a  legislative  body  but  it  was  a  court. 
Lords  and  Commons  met  originally  in 
one  body.  Now  the  two  bodies  are  sep- 
arated; the  judicial  function  is  still  exer- 
cised by  the  House  of  Lords.  The  King 
sat  in  his  own  court,  which  gave  it  the 
name  of  ''King's  Court."  Edward  IV 
was  the  last  king  to  do  so  in  person. 
Then  the  King  delegated  this  judicial 
duty  to  his  justiciaries,  who  held  the 
King's  Court,  and  attended  the  King 
wherever  he  went.  This  caused  great  in- 
l  141  ] 


THE  UNITED  STATES  AND  PEACE 

convenience  in  private  cases,  and,  jBnally, 
in  the  Magna  Charta  that  was  extorted 
from  King  John  by  the  Barons  at  Runny- 
mede,  that  monarch  agreed  that  the  as- 
sizes should  be  held  at  certain  times  in 
every  county  of  his  realm  by  his  judges, 
so  that  individuals  might  not  be  put  to 
the  trouble  of  following  the  King  about 
in  his  travels  in  order  to  get  justice.  The 
use  which  the  Stuart  kings  made  of  the 
judges  to  sustain  their  arbitrary  course 
led  to  a  change  in  their  tenure  after  the 
revolution  of  1688  and  the  Bill  of  Rights, 
so  that  early  in  the  reign  of  Queen  Anne 
they  ceased  to  hold  office  at  the  pleasure 
or  during  the  life  of  the  King  and  be- 
came judges  for  life  and  independent  of 
his  control.  We  have  thus  inherited  our 
conception  that  a  court  is  a  body  that 
decides  cases  according  to  the  law  and 
the  fact,  without  influence  by  the  ex- 
ecutive or  even  the  legislative  power  ex- 
cept as  the  legislature  enacts  positive 
[  142  ] 


EXPERIMENTS  IN  FEDERATION 

law  and  the  court  construes  and  enforces 
it  as  a  uniform  rule  of  conduct. 

No  such  idea  of  a  judicial  tribunal,  set\         a 
apart  and  independent,  prevailed  either  \   \/ 
in  Greece  or  in   Rome,  or   during   the   \ 
Middle  Ages,  or  during  the  Holy  Roman 
Empire.     It  is  a  later  conception  in  con- 
tinental countries.    But  it  is  most  impor- 
tant that  this  idea  of  absolute  justice  and 
of  having  judges  who  in  giving  judgment 
are  impartial  and  independent  of  political 
policy  or  legislative  direction,  should  be 
recognized  in  our  international  relations. 

It  is  true  that  the  Progressive  party 
and  its  leaders  are  now  seeking  to  destroy 
this  conception,  to  take  away  the  inde- 
pendence of  the  judiciary,  to  remove  the 
idea  of  absolute  justice  which  the  inde- 
pendence of  the  judiciary  is  supposed 
to  secure,  and  to  mingle  in  its  admin- 
istration of  specific  cases  the  desire  of 
the  sovereign  electorate.  Heretofore  we 
have  thought  that  in  tracing  back  the 
[  143] 


THE  UNITED  STATES  AND  PEACE 

history  of  our  liberties  from  Magna 
Charta  through  the  Petition  of  Right  and 
the  Bill  of  Rights,  the  Declaration  of 
Independence,  which  itself  insists  on  the 
independence  of  the  judiciary,  and  the 
Federal  Constitution  we  have  had  some- 
thing to  be  grateful  for  in  the  judicial 
system  which  we  have  inherited.  This 
seems  a  far  cry  from  the  Achaian  League 
and  the  federative  trend  of  government, 
but  I  think  I  can  make  it  seem  relevant 
before  I  get  through. 

We  find  in  the  Grecian  example  the 
fact  that  men  began  to  realize  that  while 
a  Grecian  city  was  capable  of  furnishing 
a  useful  and  happiness-giving  govern- 
ment, yet  when  it  came  to  resist  the  ag- 
gressions of  a  stronger  neighbor  the  peo- 
ple of  the  city  must  look  for  aid  among 
those  who  were  similarly  circumstanced 
and  yield  something  of  their  sovereign- 
ties to  one  joint  federal  authority  for 
their  protection.  There  have  been  in 
[  144  ] 


EXPERIMENTS  IN  FEDERATION 

history  since  that  time  many  instances  of 
federations.  The  Holy  Roman  Empire, 
theoretically  and  in  the  sonorous  titles  of 
the  Emperor,  began  with  Julius  Csesar 
and  lasted  until  Napoleon's  time.  It  pre- 
sented at  stages  in  its  history  an  impor- 
tant phase  of  the  federative  principle  for 
our  present  use.  After  the  breaking  up 
of  the  real  Roman  Empire  by  many  dif- 
ferent barbarian  invasions  and  migra- 
tions, and  after  the  nationalizing  spirit 
became  stronger  and  before  the  Holy 
Roman  Empire  lost  all  its  power,  there 
were  heated  discussions  as  to  the  rela- 
tion of  the  Emperor  to  the  government 
of  men.  The  prevailing  theory  was  that 
all  secular  government  came  from  God 
through  the  people  to  the  Emperor,  and 
while  kingdoms  and  dukedoms  and  prin- 
cipalities and  the  electorates  whose  chiefs 
elected  the  Emperor  exercised  indepen- 
dent government  in  their  respective  juris- 
dictions, they  all  seemed  theoretically  to 
[  145  ] 


THE  UNITED  STATES  AND  PEACE 

concede  their  subordination  to  the  divine 
right  of  the  Emperor  in  secular  govern- 
ment. He  was  called  the  Emperor  of 
Peace,  and  one  of  his  recognized  duties 
and  powers  was  to  keep  the  kings  and 
dukes  and  other  potentates  who  were  un- 
der him  from  war.  He  was  generally  un- 
successful, but  the  high  character  of  this 
duty  on  his  part  and  the  conception  which 
the  statement  of  the  duty  showed  to  be 
in  the  minds  of  men  are  interesting  and 
signijBcant.  While  it  cannot  be  said  that 
the  Holy  Roman  Empire  was  the  result  of 
a  federation,  because  in  theory  the  Em- 
peror created  Kings  and  princes,  never- 
theless, as  national  life  developed  into  dif- 
ferent sovereignties,  the  only  relation  that 
they  had  to  the  Emperor  was  a  result  akin 
to  what  would  have  happened  had  they 
been  separate  entities  and  had  then  united 
in  a  federation  for  purposes  that  the  main- 
tenance of  the  imperial  power  continued 
to  serve.  Mr.  Bryce,  in  his  history  of  the 
[  146  1 


EXPERIMENTS  IN  FEDERATION 

Holy  Roman  Empire,  speaking  of  this 
feature  of  the  empire,  says: 

With  feudal  rights  no  longer  enforceable, 
and  removed,  except  in  his  patrimonial 
lands,  from  direct  contact  with  the  subject, 
the  Emperor  was  not,  as  heretofore,  con- 
spicuously a  German  and  a  feudal  king, 
and  occupied  an  ideal  position  less  marred 
by  the  incongruous  accidents  of  birth  and 
training,  of  national  and  dynastic  interests. 

To  that  position  three  cardinal  duties 
were  attached.  He  who  held  it  must  typify 
spiritual  unity,  must  preserve  peace,  must  be 
a  fountain  of  that  by  which  alone  among  im- 
perfect men  peace  is  preserved  and  restored 
— law  and  justice.  .  .  .  And  he  was,  there- 
fore, above  all  things,  claiming,  indeed,  to  be 
upon  earth  the  representative  of  the  Prince 
of  Peace,  bound  to  listen  to  complaints  and 
to  redress  the  injuries  inflicted  by  sover- 
eigns or  peoples  upon  each  other;  to  punish 
offenders  against  the  public  order  of  Chris- 
tendom; to  maintain  through  the  world, 
looking  down  as  from  a  serene  height  upon 
the  schemes  and  quarrels  of  meaner  poten- 
tates, that  supreme  good  without  which  nei- 
ther arts  or  letters,  nor  the  gentler  virtues 
of  life,  can  rise  and  flourish.  The  mediaeval 
empire  was  in  its  essence  what  its  modern 

[  147] 


THE  UNITED  STATES  AND  PEACE 

imitators  have  sometimes  professed  them- 
selves— ^the  Empire  of  Peace;  the  oldest 
and  noblest  title  of  its  head  was  "Imperator 
pacificus."  And,  that  he  might  be  the  peace- 
maker, he  must  be  the  expounder  of  justice 
and  the  author  of  its  concrete  embodiment, 
positive  law;  chief  legislator  and  supreme 
judge  of  appeal,  like  his  predecessor,  the 
compiler  of  the  Corpus  Juris,  the  one  and 
only  source  of  all  legitimate  authority. 

The  result  of  this  view  of  the  position 
of  the  Holy  Roman  Empire  in  the  Middle 
Ages  and  later  on  is  seen  in  a  number 
of  conceptions  published  in  those  dark 
centuries.  They  are  referred  to  by  Mr. 
Thomas  Willing  Balch  in  a  paper  on 
"The  Advance  of  International  Peace 
through  Legal  and  Judicial  Means," 
which  he  read  at  the  1912  meeting  of  the 
Society  for  the  Judicial  Settlement  of 
International  Disputes  at  Washington. 
In  1306  a  French  barrister,  Pierre  Du- 
Bois,  in  a  treatise  entitled  *'De  Recupe- 
ratione  Terre  Sancte,"  urged  that  the 
Catholic  states  of  Europe  should  form 
[  148] 


EXPERIMENTS  IN  FEDERATION 

an  alliance,  with  the  King  of  France  at 
their  head,  in  order  to  secure  peace 
among  themselves.  Should  trouble  arise 
between  any  members  of  the  proposed 
alliance,  DuBois  urged  that  their  dififer- 
ence  be  settled  by  a  quasi-court  ap- 
pointed ad  hoc  and  composed  of  six 
members,  and  consisting  of  three  eccle- 
siastics and  "three  others  from  both 
parties."  In  each  case  the  Pope  was  to 
be  appealed  to  to  review  the  decision. 
In  1461  King  Podiebrad  of  Bohemia, 
adopting  the  plans  of  Antoine  Marini, 
his  chancellor,  negotiated  with  other  sov- 
ereigns for  the  establishment  of  a  fed- 
eral state  which  was  to  have  a  federal 
congress  composed  of  ambassadors  to  sit 
at  Bale.  And  Henry  IV  proposed,  at  the 
suggestion  of  his  minister,  the  Duke  of 
Sully,  what  was  called  the  Great  Design. 
Though  this  was  in  the  form  of  a  feder- 
ation to  avoid  war,  it  was  said  to  be  not 
a  genuine  proposal  of  universal  peace  but 
[  149  ] 


THE  UNITED  STATES  AND  PEACE 

a  plan  to  give  France  the  leadership  of 
Europe.  Nevertheless,  it  seems  to  have 
suggested  a  good  many  real  plans  for  the 
accomplishment  of  its  avowed  purpose. 
In  1623  a  Parisian  monk,  Emeric  Cruce, 
proposed  that  all  sovereignties  of  the 
world  should  send  ambassadors  to  some 
city  like  Venice,  and  that  when  two  sov- 
ereign powers  disagreed,  the  ambassadors 
should  plead  the  cause  of  their  respective 
sovereigns  before  the  other  assembled 
ambassadors,  who  should  decide  the  issue, 
and  the  judgment  was  to  be  enforced  by 
the  combined  power  of  the  sovereignties 
represented  in  the  court.  Within  two 
years  after  the  publication  of  this  plan, 
Grotius,  in  his  epoch-making  work  on  the 
"Law  of  War  and  Peace,"  urged  upon 
sovereigns  the  convening  of  congresses 
for  peaceable  settlement  of  international 
disputes. 

For   our  purpose,  perhaps,  the   most 
interesting  instance  of  federation  other 
[  150] 


EXPERIMENTS  IN  FEDERATION 

than  that  of  our  own  country  was  the 
Swiss  Republic.  This  federation  is  re- 
markable in  that  it  was  organized  in  the 
thirteenth  century  and  has  continued 
until  to-day.  It  illustrates  a  continuous 
union  of  people  who  speak  three  different 
languages,  in  the  very  centre  of  Europe, 
and  therefore  in  the  centre  of  a  continen- 
tal battle-ground.  It  was  doubtless  the 
result  of  the  same  desire  for  protection 
against  foreign  aggression  that  prompted 
the  Achaian  League,  but  it  lasted  longer. 
While  the  Swiss  people  differ  in  language 
they  resemble  each  other  in  character,  and 
there  was  a  national  spirit  among  them, 
early  developed,  that  insisted  on  local 
self-government  but  on  united  action 
against  invaders.  Doctor  Scott,  in  an  in- 
teresting address  before  the  last  annual 
meeting  of  the  Society  for  the  Judicial 
Settlement  of  International  Disputes,  in- 
vited attention  to  the  precedent  of  the 
Swiss  Republic  in  the  development  of  the 
[151] 


THE  UNITED  STATES  AND  PEACE 

federation  principle  into  a  national  court 
after  centuries  of  association,  and  he 
quotes  the  following  from  M.  Lardy,  a 
Swiss  diplomat,  who  presided  in  an  arbi- 
tration between  Russia  and  Turkey,  1911 : 

Is  it  improper  for  me  to  state  that  more 
than  six  centuries  have  passed  since  the 
first  of  August,  1291,  when  the  Swiss  burghers 
signed  their  first  treaty  of  alliance  on  the 
shore  of  the  Lake  of  the  Four  Cantons,  at 
\/  the  foot  of  our  snow-clad  Alps?     On  that 

memorable  day  which  the  Swiss  people  an- 
nually celebrate  with  bonfires  on  every 
mountain  top,  while  all  the  church-bells  call 
upon  the  Almighty  to  protect  the  Father- 
land, the  Confederate  Cantons  made  an 
arbitral  pact  with  each  other,  binding  them- 
selves to  submit  their  differences  to  the  more 
prudent  inhabitants  (prudentiores)  of  their 
valleys  and  creating  the  force  needed  to  as- 
sure the  execution  of  the  award.  For  cen- 
turies Switzerland  developed  under  the  pro- 
tection of  arbitration,  until  the  day  came 
when  it  was  enabled  to  commit  to  its  federal 
tribunal  the  decision  of  a  large  number  of 
disputes  of  a  public  nature  and  to  intrust 
the  rights  and  liberties  of  its  citizens  to 
the  federal  tribunal.     Will  the  court  of  The 

[  152] 


EXPERIMENTS  IN  FEDERATION 

Hague  some  day  become  the  federal  tribunal 
of  the  nations?  In  Switzerland,  small  as  it 
is,  centuries  were  required  to  create  a  per- 
manent federal  tribunal  and  to  secure  its 
acceptance  by  public  opinion.  It  is  the  part 
of  wisdom  to  believe  that  many  years  must 
elapse  before  the  basis  of  an  agreement  be 
found  which  will  assure  the  independence  of 
the  various  states  and  guarantee  the  moral 
heritage  of  every  people  in  the  universal 
concert  of  nations. 

It  is  remarkable  that  this  system  of 
arbitration,  begun  six  hundred  years  ago, 
did  not  develop  into  a  federal  Supreme 
Court  until  1845.  We  may  sincerely 
hope  that  it  will  not  take  six  centuries  /^ 
for  the  court  of  arbitration,  established 
at  the  first  Hague  Conference,  to  develop 
into  the  arbitral  court  proposed  in  the 
second  Hague  Conference. 

The  next  federation  in  point  of  time 
for  our  consideration  is  that  which  we  of 
the  United  States  have  offered  as  a  model 
to  the  world.  I  pass  it  by,  for  the  pres- 
ent, to  come  to  some  more  recent.  We 
[  153  ] 


K^ 


THE  UNITED  STATES  AND  PEACE 

find  in  the  relation  of  the  Privy  Council 
of  England  to  three  great  governments 
that  are  an  important  part  of  the  British 
Empire,  instances  of  the  trend  toward  a 
federal  court  whose  authority  and  whose 
function  are  closely  akin  to  what  an  in- 
ternational court  should  exercise.  I  refer 
to  Canada,  Australia,  and  South  Africa. 
The  compromises  that  were  made  and 
the  statesmanship  and  patriotism  that 
were  shown  in  reaching  an  agreement  for 
federation  of  the  great  English  and 
Frenfch  provinces  in  one  Dominion  of 
Canada,  owning  a  half  continent  and 
containing  now  eight  millions  of  people, 
form  a  notable  history  that  parallels  the 
struggle  our  ancestors  made  to  frame  and 
ratify  our  Constitution.  Indeed,  the 
framers  of  the  Canadian  federation  prof- 
ited much  by  the  lessons  from  our  his- 
tory. The  same  thing  is  true  of  the  for- 
mation of  the  Australian  federation,  with 
five  millions  of  people,  which  in  some 
[  154] 


EXPERIMENTS  IN  FEDERATION 

respects  more  resembles  ours  than  does 
Canada.  The  South  African  federation, 
the  last  one  formed,  under  the  British  Em- 
pire, has  less  of  the  federative  principle 
and  more  of  the  direct  government  than 
either  of  the  other  two,  or  of  our  own. 

But  in  all  these  federations  there  is  a 
Supreme  Court  which  has  the  power  of  set- 
tling the  questions  arising  under  federa- 
tion law  and  determining  the  questions 
which  may  arise  between  the  members  of 
the  federation.  In  each,  these  members 
are  great  states  quite  like  our  own,  but 
called  provinces  in  Canada,  which  carry 
on  their  local  self-governments  and  ex- 
ercise an  autonomy  differing  somewhat 
from  that  exercised  by  our  States,  but  all 
illustrating,  in  a  most  satisfactory  way, 
the  value  of  the  federative  principle,  by 
which  the  idiosyncrasies  of  locality  and 
local  tradition  are  given  full  scope  in  the 
provincial  governments,  while  the  general 
law  of  the  federation,  as  a  whole,  is  left 
I  155  ] 


THE  UNITED  STATES  AND  PEACE 

to  the  federative  parliament,  courts,  and 
executive  to  prescribe,  interpret,  and  exe- 
cute. Each  has  a  supreme  court  which 
passes  on  the  quasi-international  relations 
between  the  members  that  go  to  make  up 
the  federation.  And  then  what  is  even 
more  important  and  more  significant  of 
the  possibilities  of  a  world  federation  is 
the  judicial  appeal  that  may  be  taken 
from  the  supreme  courts  of  these  Federa- 
tions to  the  Privy  Council  sitting  in  En- 
gland that  acts  as  a  supreme  tribunal  for 
all  the  quasi-independent  governments  of 
the  entire  empire.  Sir  Charles  Fitzpat- 
rick,  the  Chief  Justice  of  Canada,  has 
been  invited  to  sit  in  the  Privy  Council 
in  the  coming  summer  in  a  cause  concern- 
ing the  boundary  between  Newfoundland 
(which  is  a  separate  colony  of  Great  Brit- 
ain) and  the  Dominion  of  Canada.  In 
the  decision  of  such  a  case  it  is  inevitable 
that  the  high  tribunal  will  administer 
the  general  principles  of  international  law. 
[  156  ] 


EXPERIMENTS  IN  FEDERATION 

Coming  now  to  our  own  government 
and  its  organization,  it  is  entirely  un- 
necessary for  me  to  go  into  the  general 
history  of  the  organization  of  the  original 
federation,  the  history  of  the  adoption  of 
the  Articles  of  Confederation  after  the 
Declaration  of  Independence,  or  the  or- 
ganization of  our  government  under  our 
present  Constitution  into  a  more  com- 
pact union,  making  us  a  nation  before 
the  world. 

Under  the  Articles  of  Confederation, 
Congress  was  made  the  tribunal  to  settle 
controversies  and  differences  arising  be- 
tween the  independent  sovereign  States 
that  made  up  the  Confederation.  The 
name  "Congress"  indicated  the  charac- 
ter of  the  body.  Congress,  in  the  lan- 
guage of  diplomacy,  was  a  term  applied 
to  a  meeting  of  sovereigns  or  of  their  am- 
bassadors for  international  action.  Con- 
gress under  the  Federation  was  called 
upon  to  settle  at  least  one  State  contro- 
l  157  ] 


THE  UNITED  STATES  AND  PEACE 

versy.  That  was  the  dispute  between 
Pennsylvania  and  Connecticut  as  to  the 
title  of  lands  in  the  Wyoming  Valley  now 
in  Pennsylvania.  Congress  selected  from 
the  different  States  a  list  of  men  from 
whom  the  parties  were  enabled  to  select 
a  certain  number  to  constitute  the  court. 
The  court  sat  at  Trenton,  heard  evidence 
for  forty  days,  and  decided  the  contro- 
versy in  favor  of  Pennsylvania,  and  in 
this  judgment  the  State  of  Connecticut 
acquiesced. 

In  the  Constitution  of  1789  the  judi- 
cial power  of  the  United  States  was 
extended  to  controversies  between  two 
States  and  between  a  State  and  a  foreign 
state.  And  these  controversies  were  to 
be  heard  as  original  cases  before  the  Su- 
preme Court.  The  Constitution  also  ex- 
tended the  judicial  power  of  the  United 
States  to  any  suit  in  which  the  United 
States  was  a  party.  This  enables  the 
United  States  to  sue  any  State,  and 
[  158  ] 


EXPERIMENTS  IN  FEDERATION 

the  fact  that  the  State  is  a  party  gives 
original  jurisdiction  to  the  Supreme  Court 
to  consider  the  cause.  One  such  case  has 
been  tried  growing  out  of  a  dispute  in 
a  boundary  that  involved  the  title  of 
the  State  of  Texas  to  Greer  County. 
The  question  was  whether  Greer  County 
belonged  to  the  United  States  or  whether 
it  was  a  part  of  Texas.  The  Supreme 
Court  heard  the  case  and  decided  in 
favor  of  the  United  States,  and  Greer 
County  subsequently  became  part  of  the 
new  State  of  Oklahoma.  It  is  unneces- 
sary to  enumerate  the  number  of  cases  in 
which  the  Supreme  Court  has  been  called 
upon  to  adjudicate  between  the  sovereign 
States  and  to  enforce  international  law 
in  their  controversies.  Mr.  Wickersham, 
when  attorney-general,  reviewed  them  at 
length  in  an  interesting  paper  read  by  him 
before  the  1912  meeting  of  the  Society 
for  Judicial  Settlement  of  International 
Disputes.  In  my  last  chapter  I  referred 
[  159] 


THE  UNITED  STATES  AND  PEACE 

to  the  case  of  Kansas  v.  Colorado,  185 
U.  S.  146,  from  the  language  of  Chief 
Justice  Fuller's  opinion  in  which  the 
term  ''justiciable"  suggested  its  use  in 
the  general  arbitration  treaties  to  de- 
scribe the  kind  of  controversies  which 
might  properly  be  arbitrated.  In  that 
case  the  chief  justice  said: 

Sitting,  as  it  were,  as  an  international  as 
well  as  a  domestic  tribunal,  we  apply  federal 
law,  State  law,  and  international  law,  as  the 
exigencies  of  the  particular  case  may  demand. 

In  the  same  case,  reported  again  in 
206  U.  S.  46,  97,  Mr.  Justice  Brewer,  de- 
livering the  opinion  of  the  court,  says: 

As  Congress  cannot  make  compacts  be- 
tween the  States,  as  it  cannot,  in  respect  to 
certain  matters,  by  legislation  compel  their 
separate  action,  disputes  between  them  must 
be  settled  either  by  force  or  else  by  appeal 
to  tribunals  empowered  to  determine  the 
right  and  wrong  thereof.  Force,  under  our 
system  of  government,  is  eliminated.  The 
clear  language  of  the  Constitution  vests  in 

[  160] 


EXPERIMENTS  IN  FEDERATION 

this  court  the  power  to  settle  those  disputes. 
We  have  exercised  that  power  in  a  variety 
of  instances,  determining  in  the  several  in- 
stances the  justice  of  the  dispute.  Nor  is 
our  jurisdiction  ousted  even  if,  because 
Kansas  and  Colorado  are  States  sovereign 
and  independent  in  local  matters,  the  rela- 
tions between  them  depend  in  any  respect 
upon  principles  of  international  law.  Inter- 
national law  is  no  alien  in  this  tribunal.  In 
the  Paquete  Habana,  175  U.  S.  677,  700, 
Mr.  Justice  Gray  declared: 

**  International  law  is  part  of  our  law,  and 
must  be  ascertained  and  administered  by 
the  courts  of  justice  of  appropriate  jurisdic- 
tion as  often  as  questions  of  right  depend- 
ing upon  it  are  duly  presented  for  their  de- 
termination." 

Mr.  Wickersham  calls  attention  to 
the  fact  that  very  few  instances  have 
occurred  in  which  a  foreign  state  has 
availed  itself  of  the  privilege  of  suing 
a  State  of  the  United  States  in  the  Su- 
preme Court,  but  he  notes  a  case  in  which 
I  had  the  honor  to  be  of  counsel,  entitled 
"In  re  Cooper,"  138  U.  S.  404,  in  which, 
with  the  knowledge  and  approval  of  the 
[  161  1 


THE  UNITED  STATES  AND  PEACE 

Imperial  Government  of  Great  Britain 
and  in  the  name  of  the  attorney-gen- 
eral for  the  Dominion  of  Canada,  an 
application  was  made  to  the  Supreme 
Court  to  issue  a  writ  of  prohibition  to 
prevent  an  admiralty  court  in  Alaska 
from  selling  under  a  decree  of  forfeiture 
a  Canadian  schooner  for  alleged  viola- 
tion of  the  statute  of  the  United  States 
against  pelagic  sealing,  on  the  ground 
that  this  sealing  was  done  beyond  the 
jurisdiction  of  the  government  of  the 
United  States  in  the  open  seas.  This  was 
a  very  emphatic  testimonial  to  the  con- 
fidence which  the  British  Government 
had  in  our  Supreme  Court,  and  the  chief 
justice  acknowledged  it  in  the  following 
language: 

In  this  case — ^Her  Britannic  Majesty's 
attorney-general  of  Canada  has  presented, 
with  the  knowledge  and  approval  of  the  im- 
perial Government  of  Great  Britain,  a  sug- 
gestion on  behalf  of  the  claimant.  He  repre- 
sents no  property  interest  in  the  vessel,  as 

[  162] 


EXPERIMENTS  IN  FEDERATION 

is  sometimes  done  by  consuls,  but  only  a 
public  political  interest.  We  are  not  insen- 
sible to  the  courtesy  implied  in  the  willing- 
ness thus  manifested  that  this  court  should 
proceed  to  a  decision  on  the  main  question 
argued  for  the  petitioner;  nor  do  we  permit 
ourselves  to  doubt  that  under  such  circum- 
stances the  decision  would  receive  all  the 
consideration  that  the  utmost  good  faith 
would  require;  but  it  is  very  clear  that,  pre- 
sented as  a  political  question  merely,  it  would 
not  fall  within  our  province  to  determine  it. 
We  allude  to  this  in  passing,  but  not  at  all 
with  the  intention  of  indicating  that  the  sug- 
gestion itself  diminishes  the  private  rights 
of  the  claimant  in  any  degree.  (143  U.  S. 
503.) 

This  international  recognition  of  our 
own  Federal  court  brings  us  to  the  larger 
projects  for  world  federation  for  judicial 
purposes  which  centre  in  The  Hague. 

The  federation  in  international  matters 
took  definite  form  in  the  invitation  is- 
sued by  the  Emperor  of  Russia  to  hold 
the  First  Hague  Conference.  At  that 
conference  an  agreement  was  entered 
into  by  the  many  nations  that  took  part 
[  163] 


THE  UNITED  STATES  AND  PEACE 

in  it,  embracing  all  the  important  na- 
tions of  the  world,  providing  a  so-called 
permanent  court  of  arbitration  for  the 
settlement  of  international  disputes.  In 
a  strict  sense  it  is  not  permanent,  nor  is 
it  a  court.  The  agreement  does  invite 
each  one  of  the  signatory  powers  to  fur- 
nish a  list  of  competent  persons  from 
whom  parties  seeking  the  form  of  pro- 
cedure provided  may  select  arbitrators. 
But  it  might  better  be  called  a  perma- 
nent plan  and  form  of  procedure  for 
temporary  arbitrations  in  the  settlement 
of  international  disputes. 

The  Second  Conference,  however,  made 
a  great  advance  over  this.  It  adopted 
a  form  for  a  permanent  international 
prize  court  and  framed  a  definite  organi- 
zation of  that  court.  It  provided  that 
the  judges  appointed  by  the  following 
contracting  parties,  Germany,  the  United 
States  of  America,  Austria,  France, 
Great  Britain,  Italy,  Japan,  and  Russia, 
[  164  ] 


EXPERIMENTS  IN  FEDERATION 

should  always  be  summoned  to  sit,  while 
judges  appointed  by  the  other  contract- 
ing powers  should  sit  in  rotation  as 
shown  in  the  table  annexed  to  the  con- 
vention, and  the  same  judge  might  be 
appointed  by  several  of  the  powers.  It 
provided  for  an  appeal  from  the  existing 
prize  courts  of  any  nation  to  this  inter- 
national prize  court  and  bound  the  pow- 
ers to  abide  by  the  result  of  the  ap- 
peal. Of  course,  services  of  a  prize  court 
are  called  into  requisition  only  during 
naval  warfare.  The  prize  jurisdiction  is 
part  of  the  system  of  legal  piracy  that 
continues  to  be  recognized  as  within 
civilized  warfare,  by  which  private  prop- 
erty of  the  citizens  of  an  enemy,  carried 
in  trading  vessels  under  the  flag  of  the 
enemy,  though  harmless  and  unarmed, 
nevertheless  may  be  captured  as  lawful 
prize  and  sold  for  the  benefit  of  the  oflB- 
cers  and  men  of  the  capturing  war- vessel. 
By  the  present  rules  of  naval  warfare,  the 
[  165  ] 


THE  UNITED  STATES  AND  PEACE 

prize  has  to  be  taken  into  a  port  of  the 
country  of  the  capturer,  and  there,  in  a 
proceeding  before  an  admiralty  court 
sitting  as  a  prize  court,  the  vessel  and 
her  cargo  are  adjudged  lawful  prize  and 
sold  and  the  proceeds  distributed.  It 
was  impossible  under  our  Constitution 
for  us  to  agree  to  an  appeal  from  the  de- 
cision of  our  prize  courts,  whether  dis- 
trict or  supreme,  to  an  international 
prize  court,  but  instead  of  that  we  agreed 
to  have  the  cause  submitted  to  the  in- 
ternational prize  court,  and  if  the  de- 
cision of  the  Supreme  Court  or  the  local 
court  was  found  to  be  wrong,  to  allow 
the  international  prize  court  to  adjudge 
damages  against  the  United  States  suffi- 
cient to  compensate  the  person  injured 
by  the  decision.  Such  a  procedure  had 
been  foreshadowed  in  several  cases  in 
which  the  judgments  of  the  Supreme 
Court  in  prize  appeals  had  been  held 
to  be  erroneous  by  an  international  arbi- 
[  166] 


EXPERIMENTS  IN  FEDERATION 

tration,  and  an  award  on  the  basis  of  the 
arbitration  had  been  made  and  paid  by 
Congress.  The  international-prize-court 
provisions,  although  agreed  upon  in  de- 
tail at  The  Hague  Conference,  have  not 
been  embodied  in  a  convention  between 
the  powers  because  of  a  difficulty  in  set- 
tling what  the  law  of  prize  is.  In  order 
to  do  this,  a  conference  of  the  powers  as- 
sembled in  London  and  agreed  to  what 
was  known  as  the  Declaration  of  London, 
formulating  a  code  of  rules  regulating 
the  rights  of  neutrals  and  belligerents 
with  respect  to  neutral  commerce.  I  am 
sorry  to  say  that  England  has  not  con- 
sented to  that  declaration,  and  her  failure 
to  do  so  has  thus  far  made  impossible  the 
consummation  of  the  very  noteworthy 
plan  for  an  international  court  of  prize. 

But  the  international  court  of  prize 

is  important  not  for  itself  but  because 

of   what  has   grown  out   of  it,  to  wit, 

the  recommendation  of  the  Second  Con- 

f  167  1 


THE  UNITED  STATES  AND  PEACE 

ference  of  The  Hague  that  we  shall  have 
an  arbitral  court  of  justice  permanent  in 
its  membership,  with  paid  members,  who 
shall  take  no  part  except  as  judges  in  any- 
international  dispute.  This  has  failed  of 
complete  concurrence  by  all  the  powers 
interested,  because  every  power  wished 
to  have  a  judge  on  this  court,  and,  as 
there  are  forty-six  signatory  powers,  such 
a  court  is  impossible.  Why  they  might 
not  make  the  same  arrangement  that  was 
made  in  the  international  prize  court 
as  to  membership,  is  not  quite  clear. 
Probably  a  good  many  of  the  powers 
were  not  interested  in  naval  warfare,  and 
therefore  not  in  the  decisions  of  an  inter- 
national prize  court,  while  they  might 
be  in  the  decisions  of  an  international 
court  of  more  general  jurisdiction. 

The  recommendation  of  this  Second 
Hague  Conference  of  both  courts,  how- 
ever, is  most  gratifying,  and  if  followed 
will  constitute  a  long  step  forward  in  the 

[  168  1 


EXPERIMENTS  IN  FEDERATION 

mode  of  settling  international  disputes, 
closely  approximating  that  of  settling 
controversies  in  our  domestic  tribunals. 
Attention  has  been  called  by  a  number 
of  persons  who  have  followed  closely 
international  arbitration,  and  who  well 
understand  municipal  judicial  systems, 
notably  Mr.  Knox  and  Mr.  Root,  to  the 
difference  between  international  arbitra- 
tion as  it  has  been  practised  and  the 
result  of  the  submission  of  causes  to  a 
domestic  court.  The  tribunal  of  arbi- 
tration has  usually  been  composed  of 
representatives  from  each  party  and  an 
umpire  or  umpires  from  other  countries. 
The  decision  resulting  has  too  often  been 
not  a  clean  judgment  of  the  facts  and  the 
law  on  the  merits,  but  it  has  been  a  com- 
promise with  the  hope  that  each  party 
may  acquiesce  in  the  suggestion  of  set- 
tlement. It  is  really  a  continuation  of 
diplomatic  effort  to  reach  a  settlement 
satisfactory  to  both  parties  with  as  much 
[  169] 


THE  UNITED  STATES  AND  PEACE 

gentle  pressure  as  may  be.  The  presence 
on  the  court  of  representatives  of  each 
party  is  calculated  to  bring  about  such 
a  result.  They  fall  into  the  attitude 
not  of  judges  but  of  partisan  claim- 
ants in  the  consultations  of  the  tribunal; 
and  apparently  it  is  not  expected  that 
they  will  ever  consent,  or  make  themselves 
parties,  to  a  judgment  adverse  to  the  seri- 
ous claims  of  the  country  which  they  are 
supposed  to  represent.  I  do  not  think  it 
is  too  much  to  say  that  this  has  generally 
been  the  continental  view.  With  En- 
glish and  American  jurists  seated  on  the 
tribunal,  exceptions  have  been  known. 
They  have  generally  approached  ques- 
tions presented  to  them  as  members  of  a 
tribunal  in  the  same  way  in  which  they 
would  approach  questions  presented  to 
them  as  judges  in  a  municipal  court. 
Thus,  in  the  issue  between  Great  Britain 
and  the  United  States  as  to  the  Alaskan 
boundary.  Lord  Chief  Justice  Alverston 
[  170] 


EXPERIMENTS  IN  FEDERATION 

sat  as  one  of  the  arbitrators  and  voted  to 
decide  the  main  question  in  favor  of  the 
United  States.  His  attitude  was  very 
severely  criticised,  but  he  justified  him- 
self as  an  EngHsh  judge,  and  said  if  he 
was  to  be  selected  as  a  judge,  he  expected 
to  act  as  a  judge.  So,  in  the  seals  con- 
troversy, Mr.  Justice  Harlan,  while  con- 
curring in  the  claim  of  the  United  States 
in  one  aspect,  voted  to  reject  the  claim 
of  territorial  jurisdiction  made  on  behalf 
of  the  United  States  and  earlier  set  forth 
at  great  length  by  Mr.  Blaine  when  sec- 
retary of  state. 

But  it  may  be  asked  why  this  method 
of  compromise  in  arbitrations  is  not  the 
best  way  of  settling  international  dis- 
putes. Does  it  not  prevent  the  feeling  of 
bitterness  that  more  drastic  judgments 
might  create  in  the  minds  of  the  defeated 
nations  and  thus  will  promote  peace  and 
good-will  .f^  I  think  not.  A  nation  which 
has  a  good  cause,  or  thinks  it  has,  will  hesi- 
[  171  ] 


THE  UNITED  STATES  AND  PEACE 

tate  to  submit  the  cause  to  a  tribunal  that 
will  in  practice  and  by  custom  abate  part 
of  the  claim,  not  on  grounds  of  justice, 
but  in  order  to  satisfy  the  natural  partisan 
feeling  of  the  opposing  party.  It  is  a 
fearless,  clear-headed,  justice-loving  court 
that  will  command  the  confidence  of  the 
nations  and  will  induce  the  submission  of 
claims  to  it.  A  permanent  international 
court  sitting  with  a  permanent  member- 
ship, and  hearing  case  after  case,  will 
acquire  not  only  a  faciUty  of  decision  but 
also  will  acquire  the  joint  judicial  spirit 
in  approaching  all  kinds  of  questions.  We 
cannot  expect  that  in  the  beginning  we 
shall  have  perfect  results.  We  must  an- 
ticipate the  presence  of  prejudice  in  the 
court,  but  the  longer  that  it  exists  and 
the  more  cases  it  has  to  decide  and  the 
more  its  decisions  form  a  consistent  sys- 
tem of  law,  the  more  confident  may  we 
be  that  it  will  grow  into  a  great  court  for 
the  consideration  of  international  ques- 
[  172  1 


EXPERIMENTS  IN  FEDERATION 

tions  having  the  respect  of  the  civiUzed 
world. 

The  independence  of  the  EngHsh  and 
American  judiciary  has  created — I  think 
it  may  be  said  without  invidious  distinc- 
tion— a  higher  standard  of  judicial  im- 
partiality because  of  the  historical  growth 
of  our  courts  into  their  present  attitude 
than  prevails  in  any  other  countries,  and, 
therefore,  even  in  a  case  between  England 
and  the  United  States,  I  would  quite  as 
willingly  submit  the  case  to  three  English 
judges  and  two  American  judges  sitting 
in  a  court  of  five  as  I  would  to  a  court 
consisting  wholly  of  jurists  from  other 
countries. 

It  is  very  clear  that  if  we  can  se- 
cure any  system  for  a  permanent  court 
which  shall  sit  to  hear  such  cases  as  are 
presented  to  it,  the  number  of  cases 
which  will  be  submitted  and  the  de- 
cisions arising  therefrom  will  be  of  suf- 
ficient influence  to  induce  the  submis- 
[  173  ] 


THE  UNITED  STATES  AND  PEACE 

sion  of  more  and  more  cases  to  such  an 
impartial  tribunal  as  it  will  prove  to  be. 
The  formation  of  the  court  is  a  most  im- 
portant step,  because,  with  the  cases  that 
are  submitted  to  it,  it  will  become  an 
object-lesson.  Time  and  time  again  the 
situation  will  arise  when  a  government  by 
public  opinion  of  the  world  will  be  forced 
into  some  other  method  than  defiant  re- 
fusal to  meet  an  equitable  claim,  and  then, 
when  such  a  court  exists,  it  will  propose 
submission  to  it  of  the  pending  question 
in  order  to  escape  from  a  more  embarrass- 
ing solution. 

With  the  formation  of  The  Hague 
Court  of  Arbitral  Justice,  as  recom- 
mended by  the  Second  Hague  Confer- 
ence, for  the  consideration  of  all  ques- 
tions arising  between  the  nations  of  the 
world,  I  shall  look  forward  with  confident 
hope  to  the  signing  within  a  few  decades, 
or  a  half -century  (for  what  is  such  a  pe- 
riod in  the  achievement  of  such  a  triumph 
[  174] 


EXPERIMENTS  IN  FEDERATION 

of  righteousness?),  of  a  general  treaty  or 
convention  by  all  the  great  powers,  in 
which  they  shall  agree  to  submit  all  jus- 
ticiable controversies  to  this  tribunal.  I 
hope  that  they  will  make  the  convention 
in  the  form  of  a  federal  agreement  by 
which  this  court  shall  be  recognized  as  a 
federal  court,  with  the  right  on  the  part 
of  any  nation  aggrieved  against  another 
nation  to  bring  its  complaint  into  the 
court,  have  the  court  determine  its  juris- 
diction of  the  complaint  in  accord  with  the 
definition  of  its  jurisdiction  in  the  con- 
vention, and  then  summon  the  offending 
nation  and  require  an  answer,  and  after 
hearing  enter  judgment.  Why  do  I  hope 
for  this?  Am  I  overenthusiastic?  It  may 
take  time,  I  admit,  but  not  so  many  years 
as  scoffers  suppose. 

The  usefulness   of  examining  history 

with  reference  to  the  federative  trend  of 

government  is  to  show  that  federation  is  a 

normal  and  natural  method  of  taking  care 

[  175  ] 


THE  UNITED  STATES  AND  PEACE 

of  and  settling,  in  an  effective  way,  jus- 
ticiable questions  between  sovereignties. 
The  theoretical  power  and  duty  of  ad- 
justment of  differences  between  nations 
by  the  Holy  Roman  Empire  induced  great 
conceptions  such  as  I  have  described  at 
a  time  when  war  was  a  normal  condition 
between  nations  and  peace  was  the  ex- 
ception. It  was  such  a  conception  that 
led  to  the  urgent  recommendation  of 
that  great  international  lawgiver,  Grotius. 
The  growth  of  arbitration  into  a  federal 
court  in  the  history  of  the  Swiss  Republic 
is  another  instance  of  the  natural  de- 
velopment from  independence  into  federa- 
tion, and  then  from  negotiation  and  ar- 
bitration into  a  federal  court  for  settling 
differences  betwe'en  the  federated  sover- 
eignties. The  international  jurisdiction  of 
the  Supreme  Court  of  the  United  States 
is  another  most  significant  model  and 
points  the  natural  historical  way  of  set- 
tling international  disputes  both  in  the- 
[  176] 


EXPERIMENTS  IN  FEDERATION 

ory  and  in  practice.  The  federative  prin- 
ciple in  the  organization  of  the  three  great 
EngHsh  federations,  Canada,  AustraHa, 
and  South  Africa,  the  estabHshment  of 
a  supreme  court  in  each  federation  to 
decide  between  the  members,  and  the  real 
character  of  the  Privy  Council  in  En- 
gland in  settling  the  judicial  questions 
between'^  members  of  the  British  Em- 
pire, all  point  more  and  more  nearly  to 
the  goal  we  seek  of  a  world  federation 
court. 

But  it  is  said:  "If  this  federative  trend 
of  government  has  existed  since  Grecian 
times,  and  was  recognized  in  the  Middle 
Ages,  in  the  days  of  Charlemagne  and 
Henry  the  Fowler  and  Frederick  Barba- 
rossa,  why  has  it  failed  in  the  long  time 
which  has  elapsed  since  then  to  develop 
into  the  court  you  seek?  Why  may  you 
expect  now  more  rapid  progress  after  cen- 
turies of  delay  .f^"  One  reason  is  the  suc- 
cess of  the  use  of  federal  courts  in  settling 
[  177  1 


THE  UNITED  STATES  AND  PEACE 

differences  really  inter-sovereign,  if  I  may- 
coin  a  word,  as  seen  in  these  modern  fed- 
eral governments,  and  a  further  reason  is 
that  the  whole  world  is  aroused  to  the  ad- 
vantage of  peace,  as  it  never  has  been  be- 
fore. Nations  of  the  world  are  growing 
closer  and  closer  to  each  other.  Facility 
of  transportation  and  facility  of  commu- 
nication have  developed  a  knowledge  and 
an  interest  among  the  people  of  one  coun- 
try in  the  doings  of  the  people  of  another 
that  was  never  known  before.  We  fol- 
low with  close  attention  the  Ulster  con- 
troversy, the  political  tragedy  in  France, 
the  trial  involving  the  military  conduct 
of  army  officers  in  Alsace,  the  Jewish  per- 
secution in  Russia,  the  parliamentary 
proceedings  in  China,  the  overthrow  of  a 
party  in  the  responsible  parliamentary 
government  of  Japan.  We  may  be  sure 
that  peoples  of  other  countries,  with  equal 
facility,  follow  the  important  events  in 
[  178  ] 


EXPERIMENTS  IN  FEDERATION 

this  country.  Money  is  being  poured  into 
the  coffers  of  our  missionary  societies  for 
the  purpose  of  promoting  Christian  civ- 
ihzation  throughout  the  Orient  and  in 
Africa  to  give  us  in  those  countries  ad- 
vance agents  and  pioneers  representing  al- 
truism and  the  promotion  of  true  rehgion. 
The  united  spirit  of  search  for  truth  and 
the  promotion  of  world  brotherhood  shown 
in  the  universities  the  world  over,  and  the 
gradual  forming  of  a  world  public  opin- 
ion, of  higher  moral  standards,  all  create 
an  atmosphere  in  which  we  may  be  sure 
this  federative  trend  in  international  mat- 
ters will  be  fostered  and  encouraged  to 
extend  to  the  creation  of  a  federal  world 
court  whose  judgments  nations  will  ulti- 
mately regard  as  binding  in  the  same  sense 
as  those  which  domestic  courts  render. 

But  the  query  is  made:    "How  will 
judgments  of  such  a  court  be  enforced; 
what  will  be  the  sanction  for  their  execu- 
[  179] 


THE  UNITED  STATES  AND  PEACE 

tion?"  I  am  very  little  concerned  about 
that.  After  we  have  gotten  the  cases 
into  court  and  decided  and  the  judgments 
embodied  in  a  solemn  declaration  of  a 
court  thus  established,  few  nations  will 
care  to  face  the  condemnation  of  inter- 
national public  opinion  and  disobey  the 
judgment.  When  a  judgment  of  that 
court  is  defied,  it  will  be  time  enough  to 
devise  methods  to  prevent  the  recurrence 
of  such  an  international  breach  of  faith. 

Undoubtedly  when  such  a  court  is  es- 
tablished, and  a  series  of  judgments  have 
been  delivered,  these  will  constitute  great 
and  valuable  additions  to  international 
law.  The  controversies  will  invite  appli- 
cation of  recognized  principles  to  new 
facts,  and  the  variation  that  new  applica- 
tions will  involve  will  widen  the  law,  and 
the  court  will  be  an  authoritative  source 
for  its  growth  and  development.  It  will 
be  judge-made  law,  and  the  growth  of  the 
[  180] 


EXPERIMENTS  IN  FEDERATION 

international  law  will  be  as  the  common 
law  has  grown,  adapting  itself  to  new 
conditions  and  expanding  on  principles  of 
morality  and  general  equity. 

It  is,  therefore,  federation  to  the  extent 
of  a  permanent  international  court  that 
offers  the  solution  of  the  problem  of  how 
to  escape  war,  how  to  induce  nations  to 
give  up  the  burden  of  armaments,  and 
how  to  broaden  and  make  certain  our 
system  of  international  law.  It  will  be 
natural  with  a  court  thus  estabUshed, 
and  with  the  closer  union  that  it  will 
necessarily  bring  between  the  various 
powers  of  the  earth,  that  congresses  of 
nations  shall  be  called  at  convenient  pe- 
riods, in  which,  by  treaties,  an  interna- 
tional code  may  be  adopted  to  meet  the 
defects  in  accepted  international  law 
which  the  issues  and  judgments  in  the 
arbitral  court  may  develop,  and  which 
the  judicial  discretion  of  such  a  tribunal 
I  181  ] 


THE  UNITED  STATES  AND  PEACE 

may  not  be  broad  enough  to  supply. 
Such  a  court  and  such  a  code  will  greatly 
promote  justice  in  the  world  and  the 
peace  of  nations. 


[  182] 


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